United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M JONES Solicitor Messrs Underwoods Solicitors 83-85 Marlowes Hemel Hempstead Herts HP1 1LF
For the Respondent	MR R HIGNETT (of Counsel) Instructed by: Luton Borough Council Legal Services Town Hall Luton Beds LU1 2BQ


 


HIS HONOUR JUDGE D SEROTA QC

1. This is an appeal by the Applicant from a preliminary decision of the Employment Tribunal at Bedford, chaired by Mr Robjant, entered onto the register on 4 March of this year. The Applicant had made a complaint of unfair dismissal and it was determined by the Employment Tribunal that the application was out of time and accordingly it dismissed the application. The matter came for directions before His Honour Judge Reid QC who directed that it should go to a full hearing.
2. On 30 July of last year the Applicant, who was employed as a Community Education Welfare Officer, wrote a letter to Mr Terry Redmayne, the Head of Access at the Education Department, in which she stated:

"As of July 31st 2002, I shall be resigning from the position of Community Education
Welfare Officer"

The letter then continues over some three pages in which she is highly critical of the way she has been treated by her employer; we need not go into the details. She claims that she had been deprived of a:

"A basic right to choose my own profession.

The right to redundancy should my position cease to exist, or redeployment.

The right to choose a job that did not conflict with my religion and put me at odds with myself karmicly, psychologically, emotionally, spiritually and socially.

The right to be heard and receive fair and just treatment in accordance with your very own Equal Opportunities and Dignity at work policies.

The tools, knowledge and framework with which to perform the contracted duties.

The crucial time with which to complete my dissertation and opportunity of obtaining a Masters Degree.

The discretion offered to others with similar issues of ill health."

She then complains she has been blamed for a number of matters and she concludes:

"I have left with nothing and worse still have been de-skilled in the process, I also leave with a sickness record that will seriously hamper my future employment.

This position is forced labour or modern day slavery and constitutes a major breach of my human rights and contract of employment
Please find enclosed my doctors certificate."

3. This we are told, because we have not seen the certificate, stated that she was unable to work for twenty eight days and certificated her as being sick for that period. The letter was date-stamped on receipt, so the letter was opened on 1 August, which is the date the Employment Tribunal find it was received. We have been told that the person to whom the letter was addressed was not in Luton on 1 August, having been seconded elsewhere. On 2 August there is a letter from the Personnel Adviser, who says:

"Thank you for your letter which has been passed to me in Terry Redmayne's absence on secondment"

and she acknowledged and accepted the resignation. Thereafter, on 6 August the Applicant wrote to say:

"I was prepared to give four weeks notice as required by my contract.

I trust I will be receiving August's salary in Lue" [sic]

On 8 August Ms Hutton writes back saying:

"Your letter of 29 July 2002 was unclear as to whether you were giving notice of resignation from that date or resigning with effect from date. However I can confirm that you will receive one month's pay in lieu of notice"

4. What Ms George says in her Originating Application which is dated and was presented on 1 November, is that she had been constructively dismissed. She set out a number of complaints that she made in relation to the conduct of the Respondent. The details of her complaint run to some thirty five pages and are to be found in our bundle. It is unnecessary for us to go through them.
5. The point was taken by the Respondent that the application was out of time. The reason it is said that the application was out of time was because Ms George, in her own case, claimed to have been constructively dismissed. Her letter of 30 July made it clear that her resignation was to be effective on 31 July. The letter was clearly received by 1 August and therefore the presentation of her complaint to the Employment Tribunal was out of time and there was no suggestion that there were any grounds for extending the time.
6. Those arguments were in effect accepted by the Employment Tribunal, albeit by a majority. We are grateful today for the assistance that we have received from Mr Jones, who appears on behalf of the Applicant. Mr Jones firstly takes issue with the construction placed on the letter of 30 July by the majority of the Employment Tribunal. His submission is that the letter should be read as meaning no more than that as at 31 July, she was giving twenty eight days notice, that being the period referred to in the medical certificate. We were told that Ms George had no intention of doing anything other than resigning on twenty eight days notice.
7. The law relating to the construction of contracts is quite clear and the task of the Court or Tribunal of ascertaining the intention of the parties must be approached objectively. I am now quoting from Volume 1 of Chitty on contracts, paragraph 12043:

"The question is not what one or other of the parties meant or understood by the words used but the meaning which the document would convey to a reasonable person, having all the background knowledge which would reasonably have been available to the parties and the situation in which they were at the time of the contract. The cardinal presumptions of the parties must have intended what they have in fact said so their words must be construed as they stand."

8. It seems to us, having read the letter, that the Decision of the Employment Tribunal as to its meaning was absolutely correct. Viewed objectively, this letter is a statement by the Applicant that so far as she was concerned, the conduct of the Respondent has been such that she can no longer be expected to continue to work and that as from the day after the letter, no doubt the date she anticipated the letter might be received, she would be resigning. We do not think that there is any doubt about the matter at all and we do not see how the letter could fairly be construed as being no more than an intention to give twenty eight days notice. It is trite law that a person can only claim to be constructively dismissed if (inter alia) he or she resigns as a result of a repudiatory breach of contract by the employer. In the current edition of Harvey DI/351:

"In order for the employee to be able to claim constructive dismissal four conditions must be met. There must be a breach of contract by the employer; this may be either an actual breach or an anticipatory breach. That breach must be sufficiently important to justify the employee resigning or else it must be the last in a series of incidents which justifies his leaving, possibly a genuine, albeit erroneous interpretation of the contract by the employer will not be capable of constituting a repudiation in law. He must leave in response to the breach and not for some other unconnected reason. He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract."

9. The right of an employee to rely upon constructive dismissal is of course to be found in the Employment Rights Act, and we of course refer to section 95(1)(c) of the Act which provides that an employee is dismissed by his employer if:

"(c) the employee terminates the contract under which he is employed with or without notice in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct"

Section 97 of the Act provides that the effective date of termination in relation to an employee whose contract of employment is terminated by notice whether given by his employer or the employee means the date on which the notice expires. In relation to an employee whose contract was terminated without notice it means the date on which the termination takes effect.

10. What is said by Mr Jones as a secondary point, if we are against him as to construction of the letter of 30 July, is that that letter, albeit received in the office on 1 August, was not necessarily considered by someone in authority until the 2^nd, that being the date when Ms Hutton had written back to the Applicant. Again, it is important to bear in mind when considering issues of constructive dismissal, a claim to have been constructively dismissed that it is simply an example of an ordinary right in contract entitling a party to treat a contract as being terminated on the basis of a repudiatory breach by the other contracting party. The right to treat the contract as so terminated is something that must of course be communicated to the other party. Again we refer to Chitty on contract, Volume 1 25012:

"Where there is an anticipatory breach or the breach of an executory contract, and the party wishes to treat himself as discharged, he must accept the repudiation. An act of acceptance of repudiation requires no particular form. It is usually done by communicating the decision to terminate to the party in default, although it may be sufficient to lead evidence of an unequivocal averred act which is inconsistent with the subsistence of the contract, without any concurrent manifestation of intent directed to the other party. Unless and until the repudiation is accepted, the contract continues in existence for an unaccepted repudiation as a thing writ in water. Acceptance of repudiation must be clear and equivocal and mere inactivity or acquiescence will generally not be regarded as acceptance with this purpose."

We are quite satisfied, as was the Employment Tribunal, that the letter was such an acceptance of repudiation. Is it sufficient that the letter should be received and opened or is more required in the sense that a person in authority must be proved to have actually seen and read the letter. Bearing in mind that, as it seems to us, when determining a contract, notice is required to be given not to a named individual but to the other contracting party, it seems to us that the communication is made when the letter is received, or if we are wrong about that, when the letter is opened.

11. Mr Jones sought to persuade us otherwise, firstly by reference to the decision of Edwards -v- Surrey Police. In that case there was an issue as to the date when the Applicant had resigned. She had written a letter dated 17 July and the Employment Tribunal held that her employment had effectively terminated on 17 July when she had decided that she did not wish to continue working and had drafted her letter of resignation. The Applicant maintained that that was wrong and appealed against the decision on the basis that as with dismissal by an employee on notice or without notice, for termination to take effect, the fact that the contract was being terminated must be communicated in one form or another to the party to it. That submission was upheld. What Mr Justice Morison, President of the EAT had to say was this, in paragraph 18:

"Accordingly, in those circumstances, there is nothing in that decision to support what we would regard as a remarkable proposition that a contract of employment could be terminated, or the termination could take effect, without communication between the parties to it. It could lead to difficulty. It seems to us that employers should know where they stand when an employee leaves. In this case, the employers appear to have written a letter which was, at the least, compatible with the employment relationship continuing until the date when they received the letter from the employee. It was not an infrequent occurrence that employees find their working life intolerable, walk out in a huff, but do not intend to bring their employment relationship to an end. It seems to us that, unless there has been a proper communication from the employee of the fact that they are regarding themselves as no longer employed, whether by words or conduct, their employment relationship has not terminated."

It would appear from what Mr Justice Morison is saying, that the receipt of the letter would be regarded as equivalent to the giving of such notice.

12. Mr Jones also drew our attention to the decision in McMaster -v- Manchester Airport. Again, this was a case concerning time limits. Mr McMaster received a letter informing of his dismissal on 9 November on a day when he was off sick and was also away from home, and he did not see the letter until the following day. It was submitted that the Employment Tribunal was wrong to have found that the decision to dismiss had been communicated when the letter was put through his letterbox. Again, this was a decision of Mr Justice Morison, and Mr Justice Morison cited from the decision in the case of Brown -v- Southall and Knight [1980] IRLR 130:

"It seems to us that it is not enough to establish that the employer has decided to dismiss a man or, indeed, has posted a letter saying so. That does not itself, in our view, terminate the contract. Nor, in our view, is it right, in looking at the matters as the industrial tribunal did in considering the reasonable steps taken by the employer, to look solely at what the employer does and to ask whether that constitutes the taking of reasonable steps. In our judgment, the employer who sends a letter terminating a man's employment summarily must show that the employee has actually read the letter or, at any rate, had a reasonable opportunity of reading it. If the addressee of the letter, the employee, deliberately does not open it or goes away to avoid reading it he might well be debarred from saying that notice of his dismissal had not been given to him. That, however, did not happen in this case. The industrial tribunal found that he had not received it by the first post; had he gone to work on Friday there would have been no obligation on him to go back home in the evening on the Friday or on the Saturday. It is clear that he did not come back until July 30; he did not read or, in our view, have a reasonable opportunity of reading it until that day; and it is not established either that he deliberately avoided reading it or that he had a reasonable opportunity of doing so. It seems to us in this case that even though he may have been in breach of some obligation to his employers in not being at work on Friday, it is quite clear that he was not at home on that day and the he did not have the necessary notice of his dismissal. The first time he knew of his dismissal was on the 30^th.

It is contended before us that the effective date of termination is not dependent upon receipt, although dismissal itself is dependent upon communication at some stage. Mr Malins, to whom we are indebted for a careful research and a most able argument, has submitted that the date on which the termination takes effect can be the date stated in the letter even though the letter is not received until subsequently. In other words, if the letter bearing the date July 20 says "You are dismissed today", dismissal takes effect on July 20 even though it is not received and not known about until July 30. We do not accept that submission. In our judgment, the termination does not take effect until the employee has either been told of, or has had a reasonable opportunity of reading, the notice of dismissal. The date on which the termination takes effect is the date when either he does read or the date when he reasonably had the opportunity of knowing about it. We do not consider that the fact that he knows on the 30^th makes his dismissal retroactive."

13. Mr Justice Morison concluded in paragraph 13:

"The consequence is that the application for unfair dismissal was, in our judgment, presented within time, since the date of termination could not have been earlier than the date on which knowledge was received by the applicant that he was being dismissed, which, on the facts, was 10 November 1995."

10 November was the date when Mr McMaster had opened the letter.

14. It may well be that there is a distinction to be drawn between cases of an employee giving notice and cases where an employer is seeking to terminate the employment, in which case the employee must know and must actually have the termination communicated to him. However, that does not necessarily apply in a case where an employee is giving notice to a large organisation such as Luton Council, and where he has to do no more than communicate to the Council, not necessarily to a particular individual, that he has treated his contract of employment as having been determined. It seems to us that the receipt of the letter by the Council, as evidenced by the fact that it was opened and date-stamped on 1 August, is a sufficient communication to the Council. We think there would be a great deal of mischief if it could be argued in cases where notice is required to be given by a particular date that although notice was received by the organisation in question, for various administrative reasons the letter did not get to the appropriate person for consideration until some time after the date of its actual receipt and opening. This is not a case of a letter that is simply lying in a postbox over a weekend, this is a letter that was clearly opened, date-stamped and passed on for someone to deal with. We know not in fact whether it reached Ms Hutton on 2 or 1 August, but are satisfied that the communication was effective on 1 August when the letter was received and opened.
15. Under those circumstances we have no option, it seems to us, but to dismiss this appeal. It does seem harsh, we recognise that simply by being one day late, or perhaps a fraction of a day late in the presentation of an application, the application has to be dismissed without consideration of its merits, but that is the effect of the law and it is a matter which goes to the jurisdiction of the Employment Tribunal. There is no element of discretion and in those circumstances, albeit we regret the result, the appeal must be dismissed.