United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C G BLAKE (Solicitor) Instructed By: Messrs Glynnes Solicitors Harvest House Low Common Bunwell Norwich NR16 1SY
For the Respondent	MR S C BOWEN (Representative) Federation of Master Builders 4 Brooklands Avenue Cambridge CB2 2BB


 


JUDGE D M LEVY QC:

1. This is an appeal by Mr D.J. Gunn in the following circumstances. On 15 February 2000 the Appellant lodged with an Employment Tribunal an application stating his complaint that he was wrongfully dismissed and there was a redundancy or unfair dismissal. The details of his complaint were set out in an accompanying notice the main parts of which read:

"The claim

(1) I claim damages for wrongful dismissal. I also claim a redundancy payment or alternatively compensation for unfair dismissal.

My working relationship with the Respondent

(2) I am a bricklayer by occupation and first began working for the Respondent in his building business in 1975. I worked continuously for him since that date until 17^th November 1999. During this period I worked for no-one else.

(3) I was always paid at an hourly rate. At the time my employment terminated my hourly rate was £8.70. I was always paid gross and was responsible for my own tax and national insurance. The Respondent did not pay me when I was sick or when I was on holiday. However, all holidays had to be taken by prior arrangement with the Respondent.

(4) I supplied my own bricklaying tools but the Respondent supplied all other equipment and all materials or arranged for others to do so.

(5) I worked during normal working hours for an average of 45 hours per week.

(6) I was always told by the Respondent where and with whom to work. I was answerable to him for all the work that I did.

(7) I did not engage or dismiss any employees and was never required to supply any employees in connection with the performance of my duties.

(8) Besides myself the Respondent employed 4 other full-time workers all of whom were general labourers. Two, like me, were paid gross without deduction of tax and national insurance and the other two were paid net, after deduction of tax and national insurance. However, in or about April of 1998 one of those who was paid gross changed over to being paid net. I recall that at the time the Respondent asked me if I also wished to be treated in this way. I declined because I could see no purpose in doing so.

(9) I made no financial investment in the Respondent's business and my remuneration was not linked in any way with the success or failure of the business.

Termination

(10) On 23^rd October 1999, which was a Saturday, the Respondent telephoned me at home. He told me that he intended to retire and close down his business. He did not give me any form of notice [emphasis added] but said that the business would cease once all ongoing work had been completed. In the event my last day of work was 17^th November 2000. I worked and was paid up to that date.

(11) In a letter written by the Respondent to me on 21^st January 2000, he implies, contrary to what he told me on 23^rd October 1999, that his business is still in operation. He also suggests that I told him that I wished to finish working on 17^th November 1999 and that I left him with jobs outstanding. These comments are not true. I am advised that if the Respondent's business is continuing and my true legal status is an employee then I am entitled to claim that I have been unfairly dismissed. This is on the basis that the Respondent had no grounds to dismiss me in October of 1999."

He dealt with "New employment".

2. The Respondent set out in his Notice of Appearance the grounds on which he wished to resist the application:

"The Applicant worked for the Respondent as a self-employed independent contractor and was engaged as such. The Respondent did telephone the Applicant in October 1999 and told him that he was thinking of winding down the business.

The Applicant informed the Respondent on the 15^th November that he had found other work and would be leaving on 17^th November.

The Respondent did not dismiss or otherwise dispense with the Applicant's services in October as alleged, or November when the Applicant left to take up other work."

3. There were two preliminary points obviously in issue, one as to whether or not the Appellant was an employee of the Respondent. That has not been the subject of a decision; the other was one which the parties and the Employment Tribunal decided should be heard as a preliminary point: was the Applicant dismissed or had he resigned?
4. That preliminary issue came before an Employment Tribunal sitting at Norwich on 19 May 2000. The parties were represented there, as they had been here, by Mr Blake, Solicitor for the Appellant and Mr Bowen, Director of the Federation of Master Builders for the Respondent. In the hearing of this appeal we have not felt it necessary to call upon Mr Bowen to help us.
5. The unanimous decision of the Tribunal was that the Applicant was not dismissed but he resigned. Paragraphs 2, 3, 4, 5 and 7 of the Extended Reasons say this:

"2 We heard evidence from the applicant and the respondent to establish what exactly happened in October and November of last year. Having heard the evidence, we are satisfied that in essence the account given by Mr Gunn is accurate. He was indeed telephoned by Mr Thacker on 23 October, who told him he was thinking of retiring and that he would not have work for him when the current work ran out. It appears there were a number of jobs still to do and it was apparent to Mr Gunn, who is an experienced worker in Mr Thacker's organisation, that the work would run out towards the middle of November. He quite sensibly took steps to arrange for alternative employment. On 13 November he obtained alternative employment starting on the Monday week. On Monday 15 November he saw Mr Thacker on site. He told him he had got another job because he estimated and estimated rightly that the work he was employed to do would finish on the Wednesday evening. Mr Thacker did nothing to disabuse him of that notion because he was quite pleased to see him go. In fact the applicant was not replaced.

3 The law in such circumstances is clear. We [were] referred, quite properly, to the well known case of Morton Sundown Fabrics v Shaw, a decision of the Queen's Bench Divisional Court in 1968 which is authority for the proposition that an advanced warning of redundancy is not a dismissal.

4 Mr Blake's submission is that in circumstances where an employee is told that his employment will come to the end on the happening of an event, namely the work coming to an end, even if that date is not ascertainable, it is a dismissal as of that time.

5 We are satisfied that such is not the law [emphasis added]. Were that the case the telephone conversation of 23 October would have been a dismissal and the die would have been cast, and neither side could do anything about the ending of the contract of the applicant without the others consent. We are satisfied this was a warning by Mr Thacker, and that in the event the applicant obtained alternative employment.

…

7 This is one of these cases where we accept the majority of the evidence of the applicant in preference to that of Mr Thacker. However, the law is clear. This was a warning of a job coming to an end in due course and the employee, and the applicant is assumed to be an employee for these purposes, deciding to take another job before he was or may have been dismissed."

6. From that decision the Appellant appealed. The matter came before this Tribunal on 6 November 2000. The Employment Appeal Tribunal in a short judgment given for the panel by His Honour Judge Reid QC referred to the decision in Morton Sundour Fabrics Ltd v Shaw [1966] 2 ITR 84, to which the Tribunal had referred in a statement and said that:

"We are satisfied that there is an issue that ought to be the subject of a full appeal in this case. Morton Sundour itself is a case now of some age (it was decided in November 1966) and it seems to us that there is a real point of law to be argued as to the effect of an indication that a job will come to an end at a future date in circumstances where the employer and employee know when about that is likely to be, even though they do not know for certainty the precise date when it will be."

7. That is the point of law on which Mr Blake addressed us for some time this morning. We have had the benefit of rather more citation than was available to Judge Reid and his colleagues. At our suggestion the parties were invited to look at the law as stated in Harvey on Industrial Relations in Employment Law on the material paragraph. That is found at D 1 253 to 260 in that work. Reading what is stated in those paragraphs, it is clear that the decision in Morton has been frequently considered and followed. The decision was given by Widgery J with whose judgment Lord Parker of Waddington and O'Connor J agreed. The editors of Harvey are in our judgment right to state the law thus:

"It is now well established that in order to constitute a notice of dismissal the notice must specify a particular ascertainable date. Where the employer gives an advanced warning of dismissal to occur at some future date, this does not constitute a notice of dismissal."

That is stated as an authoritative statement of law and numerous other cases are set out later in the paragraph. On the next page (at paragraph [261]) there is a reference to an EAT decision on redundancy:

"International Computers Ltd v Kennedy [1981] IRLR 28, decided shortly after the Haseltine case and confirming that decision, indicates that even where the employer makes it clear that the employee will not be retained beyond a future specified date, this will still be insufficient to constitute a notice of dismissal."

Further in the paragraphs there is a citation from the judgment of a panel headed by Waterhouse J, citing the words of Arnold J delivered in the case of Burton Group Ltd v Smith [1977] IRLR 351 at 354:

"In our judgment the requirement that the date should be positively ascertainable is not met by a statement that the date of termination of the employment is to be some specific date or such earlier date as the employer may select, or such earlier date as the employer may, consistent with his obligation to give the requisite period of notice, select, because that available alternative was not positively ascertainable at the relevant date of ascertainability, which is the date of receipt of the notice."

8. Even if the notice was given in a conversation, in our judgment the cases cited by Waterhouse J and the other cases cited in Harvey make it clear beyond peradventure that the decision of the Employment Tribunal below was right and that they correctly rejected Mr Blake's submission, as cited in paragraph 4 of the Extended Reasons, as not correctly stating the law. We therefore thank Mr Blake for his submissions but conclude that the decision of the Employment Tribunal was right and we dismiss the appeal.