United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PETER WARD (of Counsel) Instructed by: Messrs Levenes Solicitors Grove House 140-142 The Grove Stratford London E15 1NS
For the Respondent	Mr A Carpenter Associate Consultant First Assist Group Ltd Marshall's Court Marshall's Road Sutton Surrey SMI 9DU


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This is an appeal and there is also a cross-appeal against the Decision of the Employment Tribunal sitting at London Central on 16 and 17 August 2001, by the Appellant, Mr Turay, in respect of the dismissal of his claims against the Respondent, Complete Properties Security Limited.
2. The Appellant was employed as a security guard, latterly at what has been called the SCOPE site. It appears that it no longer became feasible for the Respondent Company to provide the services of the Appellant at the SCOPE site in August 2000, for various reasons which do not need to trouble us today, both relating to the nature of the work expected on the SCOPE site and the nature of the Appellant's availability, and he had in fact been an unfortunate victim of a racial assault and off work; and the findings of the Tribunal were that on 18 August 2000, he rang the Respondent to say that he was fit to return to work and was told that they would contact him.
3. On 25 August he rang and spoke to Mrs Grimes, the General Manager and Company Secretary. Part of the conversation the Tribunal recorded was disputed, but they said that what was agreed was that Mrs Grimes told the Appellant that SCOPE were not happy with the security arrangements and wanted to have fewer security guards, providing more consistent cover; there had been complaints about the guards, although none of the criticisms were directed at the Appellant, and Mrs Grimes told the Appellant that they had re-organised cover so that two guards would work on the SCOPE contract rather than the previous five. At this stage we do not need to say more about the conversation on 25 August.
4. It appears that there was then a further conversation on 29 August, according to the Appellant, although that was not recalled by Mrs Grimes. The Appellant's evidence was that Mrs Grimes said on that occasion, as she had on 25 August, although it was disputed, that the Appellant could not go back to SCOPE but that she would offer him alternative shifts elsewhere.
5. The finding of the Tribunal in paragraph 11 in relation to what they called the critical conversation of 25 August 2000 reads as follows:

"….. It was made clear to the Applicant there was to be no future work at SCOPE because he was unable to work the shifts required by the client. We believe there was probably confusion about whose responsibility it was to make contact - Mr Turay thought it was for the Respondent to contact him, and the Respondent thought it was for him to contact the control room. This confusion may have arisen because Mr Turay had not been in this position in the past. We make no finding as to whether he said he was not prepared to work elsewhere, but feel that this was an unlikely response. He may have expressed a preference for a similar sort of site where he was away from the public eye."

6. The conclusion of the Tribunal was that his contract of employment was terminated (paragraph 26), late in August 2000, when he was advised by Mrs Grimes that he could no longer work on the SCOPE site and no other work was offered to him as a substitute. In the past, he had been allocated to a particular site, with intervals in between when he did more general work.
7. When his engagement with the SCOPE site was terminated, he was offered no other work instead, and the Tribunal concluded in paragraph 26 as follows:

"…This failure to provide him with employment amounted to a dismissal. He had an expectation that work would be provided and it was not. The contract of employment under which Mr Turay had worked for the Respondent was thus terminated, although he could have resumed employment with them had they offered and had he accepted another engagement."

Then, in paragraph 27, they say:

"We find that the effective date of termination was 25 August 2000 or, at the latest and on Mr Turay's evidence, on 29 August when he had his second conversation with Mrs Grimes which confirmed the position "

8. The consequence of that finding by the Tribunal, namely that his contract had been terminated, effectively by dismissal, on 25 or 29 August 2000, was that his complaint to the Tribunal, which was presented on 21 February 2001, was held out of time. Plainly on the face of it that would be right because it was almost six months after the date of termination which the Tribunal found and in paragraph 27 of the Tribunal's Decision, in their last sentence, they say:

"…We are not satisfied that it was not reasonably practicable to have presented his complaint in time …"

The consequence was that the complaints of unfair dismissal, breach of contract and unlawful deduction from wages were dismissed, as the Tribunal did not have jurisdiction to hear them.

9. There was, in addition, a complaint under the Working Time Regulations 1998. That claim was not specifically dealt with by the Tribunal, and in any event, Mr Ward, before us, has conceded that there was no need for us to consider the question and it does not form the subject matter of either the appeal or cross-appeal, and will remain, so far as it has been, dismissed, but in any event, it is no longer in any issue between the parties.
10. The appeal is on the basis that, for a number of detailed reasons, the Tribunal erred in law in concluding that there was a dismissal or termination in August 2000: alternatively, in any event, that they erred in not extending the time for the necessary period, so as to ensure that the application on 21 February 2001 was in time.
11. There is a cross-appeal on the basis that the Tribunal erred in its finding that the Appellant was an employee. The last piece of the jigsaw which we must complete before turning to our conclusions is this: according to paragraph 3 of the Tribunal's Decision, the Tribunal recorded the following:

"The Respondent denied the Applicant was an employee or that there had been a dismissal. They raised a jurisdiction point stating that, if the Applicant was an employee, his complaint, which was presented on 23 February 2001,"

[I think that is an error for 21 February]

"had been presented out of time. In his closing submissions Mr Carpenter asserted that, in the event the Tribunal found there had been a constructive dismissal, the Respondent had dismissed the Applicant for a fair reason, that was for some other substantial reason. He requested leave to amend the IT3. This late amendment was opposed by the Applicant's representative who said he would be at a disadvantage if this late amendment was permitted as it would prejudice the way the Applicant had to run his case. The Tribunal refused his application."

12. Mr Ward, Counsel for the Appellant before us today, puts forward as his primary case that we should substitute a finding that there was unfair dismissal and that the claim was in time. That appeared to us, even on his case and certainly in the light of the cross-appeal in any event, to be a difficult task for him to be able to succeed on before us, and in the event, he obtained express instructions from his client who is here today to limit his application to us, that the matter be remitted to the Employment Tribunal for a completely fresh hearing.
13. He accepted that if that was the case, there would also be up for fresh consideration the issue raised on cross-appeal by Mr Carpenter, as to whether the Tribunal made correct conclusions in relation to whether and what terms the Appellant was an employee, and he also accepted that on any such remitted re-hearing, the Respondent would be entitled to run their alternative defence that the dismissal, alternatively constructive dismissal, was fair for some other substantial reason.
14. Mr Carpenter sought, nevertheless, to resist the appeal on the basis that there be remission to the hearing below. His case was that although the Tribunal had erred in relation to its findings that the Appellant was an employee, nevertheless, the result is right, albeit for the wrong reasons and we should therefore leave the matter where it is and not allow the appeal, or indeed his cross-appeal, and not remit the matter for further hearing.
15. We turn then to consideration of the issues on the appeal and cross-appeal. The first question is "Was the Appellant an employee, and, if so, on what terms and how did the Tribunal find?" It appears to us that the Tribunal is very likely to have been right (although as we are proposing, as is now clear, to remit the matter, the matter will be available for further consideration by the Tribunal) in concluding, as they did, that in general terms, the Appellant was an employee. They made findings in paragraph 25 of the Decision as follows:

"He worked under the Respondent's control; had a duty to obey instructions; was supervised as to his mode of working and could not choose his own hours of work without the agreement of the Respondent. He was subject to disciplinary and grievance procedures and he could receive sickness and holiday pay; he had no financial stake in the employer's undertaking; was paid weekly with the employer deducting income tax and National Insurance contributions; and was required to book his holidays."

Although there was no express reference made in that part of the Decision to the important letter to which we will return, of 12 January 2001, it is apparent, in the circumstances, that it is overwhelmingly likely that the Tribunal was right in its conclusion that the relationship was one of employment.

16. But what the Tribunal did not specifically go on to deal with in that paragraph was as to the terms of that employment. Mr Carpenter submits before us today that an important question which it is always necessary to consider, and certainly so since the case of Carmichael and other recent decisions, is the issue of mutuality of obligation, and he points out that the Tribunal specifically found in the earlier part of its Decision at paragraph 5:

" Mr Turay would offer a number of shifts he felt able to work and the Respondent would accept them or not."

Paragraph 7:

"In the course of the hearing it was established that if Mr Turay did not work he was not paid."

and Mr Carpenter submitted below, and submits before us, that that means that he was not an employee, because an important ingredient of employment, mutuality of obligation, obligation to attend for work on the one hand, obligation to offer work and have it accepted on the other, was not present.

17. That may be right, but it appears to us that that alone would not be a ground for challenge to the finding, nevertheless, by the Tribunal that he was an employee. What it may be is a ground for saying that his employment was one-off or site-specific, that is that he was serving under a series of contracts of employment, limited to the particular site or particular series of shifts which were, from time to time, agreed.
18. That might have been a finding which the Tribunal might have made, but it appears clear that it did not so find. Paragraph 7 goes on to read as follows:

"Mr Turay was usually engaged to work on a particular site, though this would change from time to time because of the Respondent's business needs or when he was providing cover for a colleague. During these intervals he could be sent to work on a variety of sites. He particularly liked the SCOPE site because it did not bring him into contact with members of the public whom he might meet in his day job with the Department of Social Security. There is no suggestion that in the period from 1992 until July 2000 there were any breaks in Mr Turay's contract such as to breach continuity for statutory purposes."

And then in paragraph 25, in their conclusions, the Tribunal says:

"The Tribunal is satisfied that Mr Turay was an employee of the Respondent at all relevant times. He started work for the Respondent in or around August 1992 and worked continuously for them without a break until the events in August 2000."

19. In paragraph 8 the Tribunal concludes that he was eligible to claim statutory sick pay from the Respondent in respect of the period of time he was not working for them, and, of course, in paragraph 26 its conclusion was that:

"Mr Turay's contract of employment was terminated by the Respondent"

Reference on that basis was to the contract of employment which had lasted, on the face of it at any rate, since 1992.

20. If the Tribunal made that finding, namely that the employment was not site-specific or one-off, then it appears to us very difficult indeed to see how that can be married with the conclusion that that contract of employment was terminated by the ceasing of availability of work on the SCOPE site, particularly in the light of the findings by the Tribunal, or at any rate their failure to make findings, in paragraph 11, as to whether Mr Turay was prepared to work elsewhere. It appears to us that there is what Mr Carpenter himself accepts to be an inconsistency in the Tribunal's findings. Mr Carpenter would have wished to have succeeded on his one-off or site-specific basis, and indeed, possibly, even on his case that there was no employment relationship at all, although as we have indicated, it appears to us to be a very difficult one indeed; but it appears to us only if that were established, namely that the Appellant was only employed for the purposes of SCOPE site, and had no contractual expectation of work elsewhere, that the Tribunal's decision that the contract was terminated could be justified.
21. Mr Carpenter has sought to suggest to us that the Appellant mutually agreed a termination in some way, or that termination arose in the context of SCOPE site coming to an end and the Appellant declining any alternative work. Of course that, as is clear from paragraph 11, is not a finding that the Tribunal made.

In those circumstances, the first ground of attack on this Decision, as to termination, which is one with which Mr Carpenter associates himself, not only by challenging the Tribunal's findings as to employment in the cross-appeal, but also by his acceptance in the course of argument before us today that there is inconsistency, appears to us to be made out.

22. It is further corroborated and amplified by the considerable concern that we have about the fact that the Tribunal did not approach, either properly or at all, the letter of 12 January 2001, to which we have referred. This occurred, as we have indicated, nearly five months after the conversation in August which was eventually found by the Tribunal to have been the termination of the Appellant's employment. It is common ground that there was some communication between the parties between August and January, with which we do not need to deal in the course of this judgment.
23. The letter reads as follows; it was sent by Joanne Twiner, who was not called as a witness below to explain the context or meaning of this letter, and therefore we must take it as meaning what it says. She is in the Personnel Department.

"Dear Mr Turay

I note from our records that we have had no contact with you for some time. I would be grateful if you could kindly contact me on the following number ……within the next 7 days to confirm your intentions.

Should you have decided to terminate your employment with CPS Security, written notification is required in order that we may raise your P45 and close your file accordingly."

24. On any sensible reading of that letter, it suggests that the Respondent still thought that the Appellant was their employee, which suggests:

(1) that he was or had been their employee, contrary to the argument Mr Carpenter now runs as to there being no employment.

(2) That the employment had not been terminated, contrary to the findings by the Tribunal. The Appellant's response in a letter of 23 January 2001, was:

"I write in reply to your letter of 12 January …. may I confirm that I have not terminated, neither do I intend to terminate my employment with CPS Security. As concerns contact between us it is CPS who has lost contact with me despite numerous promises ….. since then I have contacted CPS on several occasions between 18 August when I notified you of my intention to return to work because I now felt well enough, and 25 November, I have not heard from you or received a letter from you regarding my posting until now."

The only way in which the Tribunal deals with this is in paragraph 15 of the Decision which reads as follows:

"On 12 January 2001 the Respondent's personnel department wrote to him saying that they had had no recent contact from him and asking him to confirm his intentions. If he did not want to continue working he should write giving them notification of this and they would close their files on him."

The paragraph continues:

"Mr Turay sought legal advice on this letter and replied on 23 January 2001 expressing his concern at the lack of contact from the Respondent saying he did not intend to terminate his employment with CPS. He asked them to clarify the position."

25. It appears to us that unless otherwise explained, this letter is damaging to any case that the Appellant was not an employee, damaging to any case that, if he was an employee, as it appears to us he was, the terms of that employment were site-specific and involved no other obligation, and damaging to any case that his employment, if it was employment, as the Tribunal found it was, had terminated in August 2000.
26. Of course what both parties think is not conclusive. The Court will always apply, if necessary, an objective decision as to what the nature of the contract between the parties is, which sometimes surprises both parties; but, plainly, the understanding of both parties must at least be a factor in the consideration of the Court, and it appears to us that the Tribunal's Decision is flawed at least in not having dealt with that letter, and explained its reasoning as to how, notwithstanding that letter, it came to the conclusion it did.
27. It appears to us that there is a number of issues in this case which are not necessarily those which were resolved by the Tribunal. If the employment relationship between the parties was site-specific, then did the contract come to an end on 25 or 29 August? If it was site-specific how does that match with the other findings that the Tribunal made? If the contract came to an end on 25 or 29 August, was the appeal to be ruled out of time? Plainly it was out of time, but it appears to us that the Tribunal at the very least was exiguous in its consideration of the question of extension of time. Of course the obligation is that the Tribunal must be satisfied that it was not reasonably practicable for the Appellant to have presented his complaint in time.
28. We have not had any particular argument on the onus, but we are prepared to accept that the onus of proof is on the Appellant to satisfy the Tribunal that it was not reasonably practicable to present the complaint, and Mr Carpenter, who was before the Tribunal below, tells us that there was no specific evidence in this regard, and that he does not recall Mr Rahman of Counsel making a specific application for an extension of time. But the issue was wholly before the Tribunal.
29. The Tribunal itself considered the issue of jurisdiction, and realised how important it was, and, in the end, jurisdiction was the whole basis upon which the applications were dismissed, and it appears to us at the very least surprising that there was no recitation of the obvious case for the Appellant, and the evidence that was plainly given by the Appellant; because the Tribunal records it, as we have said, namely that the Appellant believed he was still employed as late as January, when, indeed, he resigned on 9 February, and that the Respondent sent him a letter on which he apparently took legal advice, which recorded that they too believed he was employed.
30. If both sides were expressing their views, and he himself was relying on the expression of that view, that he was an employee as late as January 2001, it appears to us to be at the very least arguable that in those circumstances there is justification, on reasonable practicability grounds, for the Appellant's not having put in an application until 21 February 2001, which, indeed, was speedily after his resignation letter of 9 February.
31. If, on the other hand, there was no termination of the contract in August, then the contract would appear to have continued until the Appellant's resignation letter of 9 February, which was in effect a response after earlier correspondence, to which we have referred, to the request by his employer, as the Respondent itself put it, for written notification as to whether he had decided to terminate that employment. The issue then would be, and this appears to us to be really the central issue in the case, even on the findings of the Tribunal, once one discounts what we have already described as its inconsistent conclusion that the termination was in August, namely as to whether there was a repudiatory failure by the employer to offer alternative work, or whether there was no such repudiatory failure, and there was simply either a failure by the Appellant to get in contact or, at any rate, no breach by the employer and simply an acceptance of the position by the Appellant, with a resignation which did not trigger any constructive dismissal claim. That appears to us to be the issue, once one surmounts the problem of the alleged determination in August.
32. In any event, whether it was a termination by dismissal or otherwise in August, or a constructive dismissal in February, Mr Ward accepts that if the matter is remitted, the question of substantial other reason must be permitted to be run by the Respondent, the only reason for its being refused having been the lateness of the hour on the last hearing, and now, if the matter is to be re-heard, there will be time for both parties to consider the implications of that defence.
33. The case obviously would be that if there was a termination in August, whether because it was a site-specific contract or otherwise, the availability of work at SCOPE or non-availability at SCOPE was sufficient justification for such termination, and if there was no such termination, but there was a constructive dismissal in February, then whether there was a substantial other reason, arising either out of the SCOPE position or any other relevant arrangements of the Respondent, or difficulties of providing shifts, which they would be able to establish within the relatively narrow confines of that defence.
34. In those circumstances, we have no doubt at all that the appeal and, indeed, the cross-appeal, although, for reasons given, on a very limited basis, should be allowed, and the matter remitted to the Tribunal for further consideration, or at any rate for a fresh hearing, and it appears to us the sensible course of such hearing of further argument would be to send it to a fresh Tribunal. They will be able to decide first of all whether it was employment. We conclude that it is overwhelmingly likely that it was, but we leave the matter open for further consideration. More importantly, what were the terms of that employment? Was it site-specific?
35. Secondly, whether or not the employment was site-specific, when was the dismissal or termination? If it was August, how did it come about and was it fair by virtue of substantial other reason, and, in any event, should time be extended, and, if it was February, was it a constructive dismissal or a resignation, and was it fair within the confines of substantial other reasons?
36. We have no doubt at all that the matter should be remitted. We conclude that the appeal should be allowed on the basis that the Decision that there was dismissal in August cannot stand either on the basis of the inconsistency of the findings or on the basis of the failure to deal with the 12 January letter and its consequences, and that in any event, even if the dismissal were in August, we would have concluded that the appeal should be allowed in respect of the question of an extension of time. As the matter is being remitted we propose, as we have said, that all matters should be open for reconsideration by a fresh Tribunal.