United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR BRIAN McCLUGGAGE (of Counsel) Instructed By: Messrs Lees Lloyd Whitley Solicitors 6th Floor Castle Chambers 43 Castle Street Liverpool L2 9TJ
For the Respondent	MR ASHLEY SERR (of Counsel) Instructed By: The Treasury Solicitors Queen Anne's Chambers 28 Broadway London SW1H 9JS


 


HIS HONOUR JUDGE PROPHET:

1. Miss Hill was employed as a prison officer at Wakefield prison. She submitted an application to the Employment Tribunal at Leeds on 19 December 2002 complaining of an unfair dismissal, of being subjected to a detriment in consequence of a protected disclosure, and of sex discrimination. The last complaint was withdrawn prior to any hearing.
2. The application form, completed on Miss Hill's behalf by her solicitors stated that her employment ended on 26 September 2002. The same date was put down by the employers in the Notice of Appearance where they were invited to indicate if that date was correct.
3. Thus, on the face of it, the application was submitted within the three month time limit applicable to both the complaint of an unfair dismissal, and that relating to a protected disclosure. However, when the case came up for a hearing on the merits before an Employment Tribunal at Leeds on 2 May 2003, with Mr Grazin as the Chairman and Mrs Barwell and Mr Clamp as the lay members, the Employment Tribunal of its own motion, and to the surprise of Counsel on both sides, raised a question as to whether the application had been submitted within the time limits. Having duly considered that issue the Employment Tribunal decided that Miss Hill's effective date of termination was not 26 September 2002, but 2 August 2002. Consequently, they found that the application was out of time and it was dismissed on that basis.
4. This appeal, on Miss Hill's behalf, is against that decision. Mr McCluggage of Counsel represents Miss Hill, and Mr Serr of Counsel represents the employer.
5. There is, of course, and indeed as would be expected from experienced Counsel, no challenge to the duty of the Employment Tribunal to raise an issue in respect of time limits if the Tribunal perceive a possible difficulty in that respect, notwithstanding that it has not been raised by either party.
6. Tracking a way through the maze of documents which provide a prison officer with his or her terms and conditions of employment is a difficult exercise. Indeed, in the document which purports to be compliance with sections 1 to 7 of the Employment Rights Act 1996, it states "Details of your conditions of service are given in the Prison Service Staff Handbook, the Civil Service Pay and Conditions of Service Code, the Civil Service Management Code and Notices to Staff, Prison Service Instructions and Orders, E-Mail messages etc., which also notify you of any changes".
7. The situation in which Miss Hill found herself was, we understand, covered by a Prison Service Order which sets out the steps which are to be followed by the employers in such a situation. Unfortunately, the employers departed in a number of respects from their own procedure, and there can be little doubt that the personnel department involved come out of what happened with considerable egg on their faces.
8. What the Governor of the Prison, no doubt as advised by the personnel people, was required to do where dismissal for unsatisfactory attendance was being contemplated was to "write to the member of staff notifying the individual of the intention to dismiss and rights of appeal" (paragraph 67 of the relevant Order).
9. The Governor wrote to Miss Hill on 30 May 2002 saying, inter alia, "Since there is no prospect of your return to work, and you have now been absent from work for over seven months, I have to tell you that I am intending to terminate your employment on grounds of unsatisfactory attendance ... Please let me have any representations against this decision within two weeks of receipt of this letter".
10. The problem which arises here is that paragraph 67 refers not to a dismissal (which to be effective would have to specify a termination date) but to "an intention to terminate". However, the further reference to an appeal suggests an appeal against a dismissal. Whilst it is no doubt sensible for the employer to invite and consider representations against "an intention" to terminate, that must be a different process to appealing an actual decision to dismiss.
11. Miss Hill's response to that letter was indeed to make written representations and it is significant that in her letter she says "to that end (ie the possibility of a phased return to work) I would appeal against the decision to dismiss me from the Service".
12. What happened then was that the Governor wrote a further letter to Miss Hill on 5 July 2002 which read as follows:

"Dear Ms Hill

I have received your letter of 18 June 2002 in response to mine of 30 May 2002 but I have concluded that there is no basis for altering my earlier decision to terminate your employment.

I am therefore informing you that I have decided to terminate your employment on grounds of unsatisfactory attendance, subject to 4 weeks notice. Your last day of service will be 2 August 2002.

Departments have discretion to pay compensation in accordance with Section 11.4 of the Civil Service Management Code. You will receive 100% compensation which will be calculated by Superannuation Service.

You have a continuing right of appeal to BMI Health Services against their decision not to grant you medical retirement, but you will need to provide robust medical evidence of permanent incapacity in support of this.

You have a right of internal appeal against this dismissal and the level of compensation awarded to the Director General. Appeals should be addressed to the Head of Personnel Management Group, acting on his behalf. Should you appeal against this decision to dismiss, the report from BMI Health Services following your appointment on 4 July 2002, will be considered. If you wish to exercise this right, you should return the enclosed appeal form to me within 7 DAYS of receipt of this letter.

You also have a right of appeal to the Civil Service Appeal Board (CSAB). Any appeal, which should include the grounds on which it is based, should be sent to the Secretary, Civil Service Appeal Board, 11 Belgrave Road, London, SW1V 1RB, either within 21 days of receiving notice of termination, or within 3 months of the effective date of termination. If you have any questions about these time limits or how to make an appeal, you should contact the Secretary on 0207 273 6500.

I should like to remind you that the services of Staff Care and Welfare are always available to assist you with any personal or domestic problems. Your local Staff Welfare Officer is Lynn Martinson and she can be contacted on 01347 822563."

13. However, reference back to the relevant Prison Service Order indicates no provision for a further letter of this kind, but simply assumes that the matter proceeds forward from the intention to dismiss letter, dependent only on whether the employee has, or has not decided to appeal. It can hardly be doubted from Miss Hill's response to the first letter from the Governor that she is appealing against any decision to dismiss her. She does, however, then lodge a formal Notice of Appeal on receipt of the letter dated 5 July 2002.
14. In accordance with further provisions in the Order, arrangements were made for Miss Hill to continue to receive her pay pending the appeal. The appeal was duly heard by Mr Marsh, the head of Personnel Management Group, but was not upheld. Mr Marsh wrote to her on 26 September 2002, but did not specify the last day of her service, as required by paragraph 72 of the relevant Order. It does, however, mention "the key issue of whether you should have been dismissed on 5 July".
15. The Employment Tribunal directed its attention particularly to the letter of 5 July 2002 which clearly states that Miss Hill has been dismissed and that her "last day of service will be 2 August 2002". From that it concluded that the effective date of termination was 2 August 2002 and consequently the application was presented out of time.
16. We agree with Mr McCluggage that the Employment Tribunal's concentration on the words in that letter failed to give sufficient regard to the surrounding circumstances. To achieve a just result, the contents of that letter had to be seen in the context of the procedure itself, how that procedure actually operated in Miss Hill's case, what happened up to 26 September in respect of contacts between Miss Hill and her employers, including payment to her, and the understanding on both sides of when her employment ended. That that was the proper approach is clearly indicated in the Court of Appeal's judgment in Drage v Governors of Greenford High School [2000] IRLR 314. Mr McCluggage in his skeleton argument, and his oral submissions today has been able to refer us to several passages in the Employment Tribunal's Reasons which indicate that they were not prepared to give any weight to these factors in the light of the contents of the letter of 5 July.
17. It is not necessary for us to set out in full Mr McCluggage well-presented submissions. Mr Serr's approach of relative neutrality, but with incisive observations, has been most helpful. We on this Tribunal are all satisfied that the Employment Tribunal erred in that they misdirected themselves on the approach to ascertaining the effective date of termination, and that the correct approach to the facts and particular circumstances of this case admits of only one answer compatible with the interests of justice ie that the effective date of termination of Miss Hill's employment was 26 September 2002.
18. Consequently, the appeal is allowed, and we substitute a decision that the application to the Employment Tribunal was submitted within the three month time limit. The case is remitted to a differently constituted Employment Tribunal to determine liability, and if necessary, remedy.
19. We might add two postscripts. First, that we trust that the Prison Agency will take note of what appear to us to be shortcomings, both in their procedures and how they are operated, which have given rise to the problems in this case. Secondly, that interesting questions have been raised during our hearing as to the extent to which parties may be able to agree a different EDT to that which would follow from the operation of the statutory principles. In that respect Lambert v Croydon College [1999] IRLR 346 and the recent unreported judgment in Fitzgerald v University of Kent EAT/474/02 (leave to appeal granted) have been considered. We would observe that we doubt if the principles in those cases extend beyond an agreement between the parties subsequently to adopt a different EDT because of some matter such as pension rights. Thus parties could not simply agree a different EDT for the purpose, in effect, of waiving time limit principles. However, these are observations only and are not necessary for our judgment in this particular case, although they may well arise in some other case in the future.