United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR GARY MORTON (of Counsel) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME
For the Respondent	MR DAVID CRAIG (of Counsel) Instructed by: Consignia Plc Legal Services Impact House 2 Edridge Road Croydon CR9 1PJ


 


HIS HONOUR JUDGE J McMULLEN QC

1. This case is about unfair dismissal and Employment Tribunal procedure. We will continue to refer to the parties as Applicant and Respondent.

Introduction

2. This is an appeal by the Applicant in those proceedings against the decision of an Employment Tribunal sitting at London (South), Chairman Mrs F J Silverman, promulgated with Extended Reasons on 3 September 2001; and of a decision of a differently-constituted Tribunal, chaired by Mr D Booth, promulgated with Extended Reasons on 1 November 2001,. The Applicant represented herself. The Respondent was represented, as today, by Mr Craig of Counsel.
3. The Applicant claimed constructive dismissal. The Tribunal met on the first occasion to consider that claim. The simple issue before it was to determine whether it had jurisdiction to hear the case, since it appeared that the Applicant was still employed by the Respondent. The Tribunal decided it had not.
4. The Applicant launched a second set of proceedings which led to the hearing before Mr Booth's Tribunal. That Tribunal decided that it was bound by this previous decision of the differently-constituted Tribunal.
5. The appeal is on the ground that both Tribunals erred in law in the determinations which they made as to the Applicant's effective date of termination.

The facts

6. The circumstances are only tentatively described in the Booth Tribunal decision since no evidence was heard. It appears that the Applicant had worked for the Post Office for many years. She took maternity leave in 2000 from her full-time appointment which ended in 2000. She asked if she could return to work on a part-time contract. The Respondent declined to offer part-time hours in the way that she had wanted to perform them and she told the Tribunal that on 10 December 2000 she wrote expressing her view. The refusal by the Post Office in her view constituted constructive dismissal and she therefore resigned.
7. On 15 December 2000 the Applicant presented her Originating Application which was the subject of the first Tribunal hearing. In this Originating Application, which was dated and signed by her 4 December 2000, she made the claim which has been summarised above.
8. On 19 January 2001 the Respondent presented a Notice of Appearance contending that the Applicant was at that date, and therefore on the date of the presentation of the Originating Application, still employed by it. The Respondent denied receipt of the letter of 10 December.
9. The Employment Tribunal was to decide whether it had jurisdiction under section 111 of the Employment Rights Act 1996. This requires an Applicant claiming unfair dismissal to present an Originating Application within 3 months of the effective date of termination, but under section 111 (3) an application may be presented by a person under notice yet still employed.
10. The Applicant contended initially that she had been constructively dismissed on 10 December. Neither party cleaves to that first assertion. The second assertion was that the Applicant was constructively dismissed on 22 January when she wrote, as she told the Tribunal, her second letter of resignation.
11. The Respondent does not deny that somewhere within its organisation this letter was received, but it certainly did not reach the right person. The Applicant contended that there was a fraudulent cover up of the Applicant's attempts to resign and asserted most forcefully that she had resigned on 22 January 2001.
12. The sole issue was whether or not the Applicant was employed on 15 December 2000. The Tribunal determined that she was. Whether she was still employed on 22 January or 28 February 2001 (as will become apparent) was neither here nor there. It was necessary for its determination of the jurisdiction issue. The Tribunal found against the Applicant because she was still employed on 15 December 2000.

The Decison

13. It is common ground before us that a resignation is effective only when it is communicated to the employer. Thus, no communication was effective on 10 December and the Tribunal committed no error in upholding the Applicant's assertion that she was still in employment until her resignation on 22 January.
14. The Tribunal however went on to define the effective date of termination. It decided this was indeed in accordance with her case: 22 January 2001.
15. The reason why it went on to consider that matter was because it was concerned that the Applicant might wish to present a fresh Originating Application. On 17 May 2001 she presented her second Originating Application citing 28 February 2001 as the effective date of termination. The documentation clearly supports that position.

Submissions

16. Mr Morton of Counsel, who represented the Applicant today and at the Preliminary Hearing before Judge Reid QC, presenting the same arguments which in that case were effective to bring the case to us, has contended that a mass of material points towards an agreement being reached that the Applicant would leave her employment on 28 February. Thus, her second Originating Application would be in time if that was indeed the effective date of termination.
17. The hearing of that Originating Application took place before the Booth Tribunal which decided that it was to follow the decision of the Silverman Tribunal. The question is whether it erred in law in so deciding.
18. It was because of the Silverman Tribunal's indication that it would consider the exercise of its discretion to allow a claim out of time that the Applicant launched the second proceedings and that the Silverman Tribunal made a decision about the effective date of termination which, as we have indicated, would not otherwise have been essential to its findings.
19. The Tribunal decided, having heard the Applicant say that there was no reason why she could not have presented an Originating Application within three months of her effective date of termination on 22 January, that it was reasonably practicable therefore for her so to present. It did not need to consider whether it was just and equitable to extend the period of time. As the Tribunal said, she agreed that she had no excuse.
20. The Tribunal also recorded the Applicant's express disavowal of her intention to pursue a claim for sex discrimination which, on the description of the facts she had given in the first Originating Application, might have been possible.
21. Thus, the Tribunal accepted both formal assertions by the Applicant (that is as to the effective date of termination and as to her not pursuing the sex discrimination claims). It should be noted that such claims as she was asserting – a refusal by an employer properly to adjust to the return to work of a woman who had been on maternity leave – are now justiciable under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and might well have informed a claim of sex discrimination under the principles set out in Edwards v London Underground Ltd [1998] IRLR 364. That issue does not arise.

Conclusions

22. Mr Morton today contends that the Tribunal was perverse in its decision to record the Applicant's intention to disavow sex discrimination. In our judgment that is an impossible contention and that aspect of the appeal is dismissed. Although the Applicant was unrepresented it seems to us the Tribunal was entitled and required to take at face value the assertion which she was making. The matter may not be relitigated either before the Booth Tribunal or before us.
23. We turn then to the principal aspect. At the hearing on 1 May before the first Tribunal the Respondent was represented by Counsel who had in his possession most of the documentation apart from one disputed letter; all pointing, as we have said, towards a termination on 28 February.
24. The disputed letter is dated 3 March 2001, which was not in the possession of Counsel until the hearing in October. This is a letter to Mr Gent in which the Applicant points to an agreement being made between the two of them as to her accepting 28 February 2001 as her resignation date. No instructions had been given to Counsel about this letter. No attempt was made to interview Mr Gent to take a witness statement from him and he would obviously be crucial.
25. However, that material does not assist the Applicant in this case. The principle of law which we apply is that there has to be finality in certain stages of litigation. It will be recalled that what was going on before the Silverman Tribunal was the Applicant having to prove that the Tribunal had jurisdiction to hear her claim. Since she was asserting employment until 22 January she failed.
26. The secondary matter is the recording of her contention that the dismissal took place on 22 January. It is submitted by Mr Morton that a Tribunal is under a duty, particularly where the Applicant is unrepresented, to make the claim for him, although he does not put it in such stark terms.
27. We disagree. It is clear from Dimtsu v Westminster City Council [1991] IRLR 450 EAT that an Employment Tribunal Chairman is not under a duty to make a case for a person who is not making it. It follows that in the circumstances here of an Applicant positively asserting 22 January, there is no obligation on the Tribunal to disabuse her of that, nor is there an obligation on the Respondent to say anything further. This is because the Respondent had succeeded on its preliminary point of showing employment at least at 15 December 2000.
28. Mr Craig has contended that the scope of the Tribunal hearing on that day was limited to this essential finding. Certainly the treatment of the Applicant's correspondence by the Respondent is wholly unsatisfactory. It reflects no credit whatsoever on the statutory undertaking to deliver the mail that it was not received apparently in the right hands, mail directed to it by one of its employees, particularly sent by a recorded delivery. Nevertheless, that does not obscure the real issue in this case.
29. We have been referred to the general principle about litigating matters which have already been decided, known as the doctrine of estoppel. See Khan v Golechha International Ltd [1980] 1WLR 1482, which concerned a concession made by Counsel. Brightman LJ cited with approval the judgment of Lush J in Ord v Ord [1923] 2KB 432 at 439, who said this:

"The words 'res judicata' explain themselves. If the res – the thing actually and directly in dispute – has already been adjudicated upon, of course by a competent court, if cannot be litigated again. There is a wider principle, to which I will refer in a moment often treated as covered by the plea of res judicata, that prevents a litigant from relying on a chain or defence which he had an opportunity of putting before the court in the earlier proceedings and which he chose not to put forward...

The maxim 'Nemo devet bis vexari' prevents a litigant who has had an opportunity of providing a fact in support of his claim or defence and chosen not to rely on it from afterwards putting it before another Tribunal. To do that would be unduly to harass his opponent, and if he endeavoured to do so he would be met by the objection that the judgment in the former action precluded him from raising that contention."

30. The Court of Appeal decided that the approach to the issue on a wider basis was that, as Brightman LJ said at 1490G:

"The only sensible approach of the law, in my view, is to treat an issue as laid at rest, not only if it is embodied in the terms of the judgment, or implicit in the judgment because it is embodied in the spoken decision, but also if it is embodied in an admission made in the face of the court or implicit in a consent order."

That seems to us is the principle which informs the judgment which we are bound to make.

31. It is instructive to note, as Bridge LJ pointed out at 1493D, that that wider principle applies, even where an admission or concession was wrongly made. It is strongly arguable, in our view, that the argument advanced by the Applicant as to 22 January was wrongly made in the light of the documents which she had at the Tribunal on 1 May.
32. Nevertheless, the legal principle is clear and we are bound to follow it. Thus, the first Tribunal made no error of law; and in following the legal principle in Khan nor did the second.
33. It may well be that some lessons may be learned from this protracted litigation. The first Tribunal, having announced its decision, heard the Applicant, we understand, say "I have a P45 which shows 28 February" and it may well have been an appropriate step for the Tribunal to consider that as an application for review. Certainly the Respondent would not be taken by surprise by those documents, although it may have needed to take further time to consider whether an agreement had been made, as the Applicant later asserted, between herself and Mr Gent.
34. Nevertheless, that does not amount to an error of law committed by either of these Tribunals in either the decisions as to the effective date of termination or the recording of the Applicant's abandoning sex discrimination claims.
35. In those circumstances the appeal is dismissed.