United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C BOURNE (of Counsel) Instructed by: Messrs Williamsons Solicitors Lowgate Hull HU1 1EN
For the Respondent	MR M PILGERSTORFER (of Counsel) Instructed by: National Grid Transco plc NGT House Warwick Technology Park Gallows Hill Warwick CV34 6DA


 


SUMMARY

Employer gave notice of redundancy to expire on 31 May; termination date brought forward to 31 March with payment in lieu in respect of balance of period. ET found application not brought within 3 months of 31 March out of time. Appeal dismissed. The agreed earlier date constituted an implied withdrawal of the earlier notice or - if necessary concluding TBA Industrial Products Ltd v Morland [1982] ICR 686 to be per incuriam (4 NIRC or EAT decisions not having been addressed) and preferring the minority judgment of Ackner LJ - a variation of that notice.


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the hearing of an appeal by the Applicant, Mr Palfrey, against the unanimous Decision of the Employment Tribunal at Leeds, after a hearing on 2 October 2003 in a Decision handed down on 17 October, that the Originating Application in respect of his claim for unfair dismissal by the Respondent, Transco Plc, was presented more than three months after the effective date of termination of the Applicant's employment and that, accordingly, the Tribunal did not have jurisdiction to consider the complaint on its merits, and the complaint was dismissed. There was an alternative case put forward before the Tribunal, based on reasonable practicability of presentation of the complaint outside the three month period, on which the Tribunal ruled against the Applicant, and which has not been appealed.
2. This is a case relating to what is in fact a very commonplace situation, in which a lengthy period of notice has been given by an employer to an employee, particularly common in redundancy situations, in which either at the outset there is an option given, or at some stage, during a period while the employee continues to work out his notice, such employee wishes either to take early retirement or to find another job, and the original notice period is foreshortened.
3. The facts here arise out of the original service of a notice contained in a letter dated 24 February 2003, which reads as follows:

"Your notice period commences on 25^th February 2003 and your last day of employment will be 19^th May 2003, allowing you to work your full notice period. If you would prefer to bring your final date forward, Transco would be willing to pay you in lieu of notice. If you wish to take up this option please speak with your line manager. …..

Your redundancy payment, subject to any deductions, will be paid into the same bank account that your current salary is paid into, on the 15^th June 2003."

And then at the end of the letter, it said:

"It is important for you to remember that when you leave the employment of Transco and you do not have another situation to go to, then you must register immediately with your local Job Centre …"

And there are provisions in respect of pension arrangements.

4. The letter uses the traditional word, in "lieu" of notice, taken from the French, and long adopted in relatively official or legal phraseology, in the employment field. Of course, it means nothing other than the good old Anglo-Saxon word "instead" of, and the proposal there was that the employee should work out the full period of notice, with the employment terminating on 19 May, but if he wished to bring forward his date of termination of employment, his "final" date, then there could be an agreement, instead, to pay a cash payment, that is effectively by way of damages, instead of the notice period.
5. The Tribunal referred to this letter as follows, in paragraph 6 of its Decision:

"There can be no doubt that the parties anticipated, at that stage, that the effective date of termination of the applicant's employment would be 19 May 2003. However, the letter left open the option of the Applicant seeking to bring that date forward. That option was attractive to the Applicant. Before he took any steps in that direction, he received a further letter from the Respondent dated 27 February 2003. That followed a telephone conversation when the Applicant requested further documentary information. After providing that information, the Respondent continued:

'In addition to the above, you were also entitled to 12 weeks' contractual notice. This notice period may be worked, or, at Transco's discretion, paid in lieu of notice, or a combination of both paid and worked.'

On this hearing, it was conceded that the contract of employment between the parties provided that there was an option on the part of the Respondent to make payment in lieu of notice without the Respondent itself being in breach of contract in making any such payment."

The Tribunal continued, in paragraph 7 as follows:

"The Respondent's letter of 24 February 2003 enclosed a document entitled "Expression of Wish Form". The Applicant could elect between taking his full contractual redundancy payment or taking a larger pension. That was entirely a matter for the Applicant. He elected to take the redundancy payment to which he was entitled in full. Beneath that, he wrote:

'Including payment in lieu of notice plus holidays'

That document was dated 7 March 2003. On 14 March 2003, he sent an e-mail to two senior members of the Respondent's management referring to the letter of 24 February. The document continued:

"I …….. confirm that the pension's unit (sic) ha confirmed to HR Killingworth my pensions expression of wish form, dated 7 March 2003 requests payment in lieu of notice including holiday, both pensions and the HR process are held pending notification and acceptance of this form from Ian [Beaufoy]"

6. The outcome of these negotiations was a letter dated 17 March 2003 from Mr Roll, the Human Resources Analyst of the Respondent, which, in material part said as follows (I should read the beginning of the letter, although, as the Tribunal pointed out, it was written on the basis of a misconception that the e-mail to Mr Beaufoy was from the Applicant, but in fact that is not a material error):

"I refer to your e-mail to Ian Beaufoy at 14.27 14 March 2003, confirming that you would prefer to bring your final date forward to 31 March 2003.

Your notice period, as detailed in your termination letter dated 24 February 2003 commenced on 25 February 2003, and your last day of employment will be 31 March 2003. As a result of you not working your full period of 12 weeks' notice, you will be paid 7 weeks' pay in lieu of notice. This payment amounts to [amounts set out] which includes a sum of money in lieu of benefits associated with your foregone pension entitlement. This total payment is subject to reductions for Tax and National Insurance.

Please find attached an estimate of your redundancy terms, calculated in accordance with the Transco Joint Council Compensation Scheme, based on a leaving date of 31 March 2003."

[We interpose to point out the significance of that leaving date, as recorded in his estimated redundancy entitlement.]

"Your redundancy payment and pay in lieu of notice subject to any deductions will be paid into the same account that your current salary is paid into, on the 15^th April 2003."

We again point out that that is of course a bringing forward of his entitlement to a redundancy payment from the earlier provision in the letter of 24 February, a fortnight after the new leaving date on 31 March 2003.

7. The relevant statute in this application was section 97 of the Employment Rights Act 1996 which reads as follows:

"(1) Subject to the following provisions of this section, in this Part "the effective date of termination"-

(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires"

The Applicant, before the Tribunal, represented then by a solicitor, Mr Van Zyl, relied upon the decision in the Court of Appeal in TBA Industrial Products Limited v Morland [1982] ICR 686.

8. That was a majority decision of the Court of Appeal in which the judgment of the majority was given by Waller LJ, with whom Sir John Willis, a recently retired High Court Judge, agreed, while Ackner LJ dissented. At 685H Waller LJ referred to the letter which notified the appellant in that case of his selection for redundancy.:

"With that letter a blank letter was sent, which was filled in by the [applicant]and then read as follows:

'Termination of Employment, I have recently been informed that my employment will be terminated on 2.8.80 due to redundancy. I now wish to terminate my employment before the above mentioned date and wish to leave on 7.6.80. I am aware that if my request is granted my entitlement to a redundancy payment is not affected, and although the company has no obligation to make any additional severance payment I understand that a payment will be made which will cover the unexpired portion of my period of notice from the company, as determined by my contract of employment. Signed: EC Morland.'

At 689F Waller LJ continues:

"The first matter upon which stress has been laid is the wording of the letter from the [applicant] It is headed: "Termination of Employment' and it contains a clause saying: 'I now wish to terminate my employment before the above mentioned date.'
That phrase and that clause are quite inconsistent with the last paragraph of the letter to which it is a reply, namely:

'It may be that you wish to leave before 2 August and should you wish to leave early please complete the attached form and hand it to your Departmental Manager'

……….

The first question that we have to consider is whether or not it can be said that the memorandum from the respondent can be regarded as a counter offer. In my opinion the answer to this question, in part, depends upon the interpretation of"

[and then there is a reference to what is now section 97(1)(a) of the 1996 Act.]

"This is the case of an employee whose contract of employment has been terminated by notice and no argument to the contrary has been addressed to us. Termination by notice involves the notice being causative of the termination. The notice, in my opinion, has to be unconditional. The notice which was given by the appellants to the respondent was just such a notice and it terminated the respondent's employment as from 2 August. The memorandum from the respondent to the appellants was not causative of anything. It was an answer to the last paragraph of the appellant's letter about leaving early and it was, perhaps, an offer to which the appellants could agree. But if the appellants did agree it was their agreement which would be causative and not this letter. It is, in my opinion, quite impossible to construe this letter as a counter offer."

The conclusion by the majority thus, at 690H was:

"I have come to the conclusion therefore that nothing in this case happened to alter the original notice to terminate in August and accordingly the application was made in time."

9. The Employment Tribunal, in a very careful decision given by the Chairman, Mr Grazin, explained why they did not follow the result in TBA, in paragraph 15 onwards:

"15. As we have indicated, there is one important factual distinction between the instant case and that of Mr Morland. It seems to us that we are bound to accept, not without some hesitation, the conclusion that a termination by notice involves notice being causative of the termination. Had the matter been free of precedent, we would not have read Section 97 (1) (a) as dealing with issues of causation in any manner. In our view, it simply defines the date which is to be treated as the effective date of termination of a contractual relationship."

We interpose to remind ourselves that the wording of section 97(1)(a), on its face, simply provides that, in relation to an employee whose contract of employment is terminated by notice, the effective date of termination means the date on which the notice expires. The Chairman continued:

"However, we are bound to take account of that decision, and we do so. The issue on causation is therefore whether the original letter of 24 February caused termination of the Applicant's employment on 19 May 2003, or whether the Respondent's subsequent letter of 17 March had the effect of causing the termination of the employment relationship to be brought forward to 31 March. We have deliberately added into our definition of the issue the two dates with which we are concerned. We have done so because Section 97 (1 ) (a), in its clear terms, deals with date of termination and not the reason for the termination. Even if the reason is to be incorporated into the statutory provision, as read by the Court of Appeal, we cannot accept that the relevant provision should be read as entirely ignoring the issue of dates. Whatever was the position on 24 February, and between that date and 17 March, we find that the cause of the Applicant leaving employment on 31 March was the Respondent's letter of 17 March. Lord Justice Waller said that the plain words of Section 97 (1) (a) require that the notice be causative of the termination. The notice given by the Respondent on 17 March was causative of the Applicant's employment having ended on 31 March."

10. The Tribunal then goes on to reach an alternative conclusion, by way of arriving at the same result.

16. That is one approach to this matter. If we should be held to be wrong in our interpretation and understanding of Section 97 (1) (a), we alternatively rely upon Paragraph 11 of the judgment in TBA. The Court of Appeal said:

"ln my opinion, there can be no doubt but that the employers could, if they wished, have withdrawn their original notice and served a new notice complying with the dates suggested by the "employee". There would then be no question but that the new notice terminated the employment."

In our view, those words apply to the instant case. Save that the letter from Mr Roll of 17 March included the words

"as detailed in your termination letter dated 24 February 2003"

(a reference back which, on the construction of a letter of 24 February 2003 is entirely otiose) the relevant wording of the two letters is identical. That of 24 February 2003 reads:

"Your notice period commences on 25 February 2003, and your last day of employment will be 19 May 2003, allowing you to work your full notice period."

That of 17 March 2003, so far as relevant, reads:

"Your notice period …… commenced on 25 February 2003, and your last day of employment will be 31 March 2003".

17 Although the letter does not specifically say in terms that the previous notice is withdrawn, it seems to us that the Respondent did serve a new notice which complied with the date which was acceptable to the Applicant, if not a date specifically indicated by him. We find that it was acceptable to the Applicant, because the Applicant did not register any protest to it; he accepted that he should be paid on that date, and he did not carry out any work for the Respondent after that date. There is no difference between specifying a date in advance on the one hand, and agreeing to a date which is provided, within a reasonable period, in answer to a request and subsequently accepting that date on the other. As Waller LJ put it, there would then be no question but that the new notice terminated the employment. In our view, that is exactly what occurred here: the new notice did terminate the employment on 31 March 2003. That, accordingly, was the effective date of termination."

We agree with the Employment Tribunal. Plainly, the employment here was terminated on 31 March. That was not only the day on which the Applicant last worked, it was the day after which any payment that was made was paid in lieu of notice, and that sum was received in full, together with the redundancy payment, on 15 April. That date was the leaving date entered into the redundancy scheme, and from that date, he drew his pension.

11. On any basis of construction, by either a reasonable employer, or a reasonable employee, or the objective observer, the Applicant's employment came to an end on 31 March and it is not a question thereafter of his remaining in the Respondent's employ, but not having to work; but, of course the question is not simply one of common sense and practice but one of the construction of section 97 of the Act, albeit that it must be one which accords with common sense.
12. There are two matters that should be stated before we set out, briefly, our conclusions as to why it is that the Tribunal was right. First, we indicated at the opening of this Decision that this is not an unusual situation. We are clear that there must be a real risk, if the construction by the Employment Tribunal, which of course causes hardship in this one case, is not adopted, of hardships that would be caused in other cases. There must be a real risk that if, in fact, what occurred here is not permissible, so as to vary or replace the original notice, that where there are consensual discussions between an employee and an employer during a notice period, which lead to an agreed date of termination, it might be capable of being suggested that that amounted to a consensual termination and that the original notice by the employer was not causative, but that the employment resulted from an agreement between the parties, such that there could be no claim for dismissal or unfair dismissal at the hands of an applicant. That is plainly a scenario which should not be permitted, and this should not be an area in which that possible scenario should be put at risk, by a strained interpretation of what is otherwise a perfectly normal and sensible arrangement. There ought not, in our judgment, to be any kind of complicated procedure which has to be gone through by parties to arrive at such a sensible result.
13. Secondly, Mr Pilgerstorfer, for the Respondent, relied for the purposes of his Skeleton Argument in support of the Tribunal's Decision on a case not referred to below, and I think not decided when the decision below was arrived at, Fitzgerald -v- University of Kent at Canterbury [2004] EWCA Civ 143 (unreported). He relied on it because of a passage in Sedley LJ's judgment, at paragraph 20, in which he said:

"The answer in my judgment is that the effective date of termination is a statutory construct which depends on what has happened between the parties over time"

and he submitted that that must include what has happened, subsequent to an original notice, by way of agreed variation of it.

14. Mr Bourne, who, like Mr Pilgerstorfer, did not appear below and has argued the matter very ably in writing and orally before us, latched on to that case of Fitzgerald -v- University of Kent to support his argument, as he submitted. That was a case in which, after the employment had terminated on 2 March, it was agreed between the parties that the applicant should be treated as having accepted retirement as from Wednesday 28 February. This was effectively what Mr Bourne described as a rewriting of history after the termination of the employment, and in that same paragraph 20 Sedley LJ said that the effective date of termination was not what the parties may agree to treat as having happened. In the alternative, Sedley LJ, at paragraph 22, concluded that such agreement, whereby consensually a date should be arrived at subsequent to the date of termination of her employment and antedating it, fell squarely within the description of a provision in an agreement which purports to limit the operation of section 111 of the 1996 Act, and thus of section 97.
15. We do not agree with Mr Bourne that this supports his argument; it appears to us that that is a case on entirely different facts, where the Court was not prepared to allow a situation whereby the parties, after the employment had terminated, rewrote what had occurred. In this case, the employment had not yet terminated on any basis, when the letter of 17 March was sent, and either it was, or was not, effective to bring forward the date of termination. The Applicant's case was that, notwithstanding its terms, and notwithstanding everything else to which we have referred, his employment continued until 31 May, notwithstanding all the events of payment and leaving, retirement, redundancy and pension occurring on 31 March.
16. The straightforward answer that the Employment Tribunal put forward in paragraphs 16 and 17 of its Decision, straightforward in the sense of involving, as the Tribunal saw it, no need for it to question the decision in TBA, is based upon what Waller LJ said in that case at 690E, of which the Tribunal made reference, namely:

"I must next consider whether or not it can be said that this letter produced a variation or waiver of the original notice by the appellants. In my opinion there can be no doubt that the appellants could, if they wished, have withdrawn their original notice and served a new notice complying with the date suggested by the respondent. There then would be no question but that the new notice terminated the employment. I do not think it is possible to infer that procedure from the facts before us. Indeed to draw such an inference would require the most liberal interpretation to be given to section 97(1)(a). It would be necessary to read that "the date on which the notice expires" was followed by the words "or any variation thereof"."

17. This assumption that there could be no variation to the original notice, because of the words of section 97(1)(a), which, in any event in our view, as we have indicated, is not a helpful interpretation, given the circumstances in which these kind of agreements tend to occur, is one which rendered it necessary for the Court of Appeal in TBA to require that the original notice had positively been withdrawn. The Tribunal, as we have read, concluded that that is in fact what occurred in this case, namely, that albeit there was still a surviving reference to the letter of 24 February in the letter of 17 March, the letter sufficiently now prescribed 31 March as the last day of employment as to amount to a fresh notice.
18. Mr Pilgerstorfer relied on a case subsequent to TBA, in which TBA was similarly distinguished, namely Staffordshire County Council -v- Secretary of State for Employment [1987] ICR 956. That was a case in which a letter was sent by the County Council to Mr Baxter, the applicant in that case, giving notice of dismissal by reason of redundancy to expire on 31 August 1986. There was thereafter a letter sent offering an alternative arrangement, under which teachers taking early retirement, with a redundancy at the end of the present term, could be offered the opportunity of leaving the employment on 31 July instead of 31 August. Mr Baxter took up that offer, and said he was willing to accept his retirement date as 31 July, and the County Council wrote a letter thanking Mr Baxter for his indication of his wish for his employment to be terminated on 31 July, rather than on 31 August, and enclosed a formal dismissal letter, which provided that he was given formal notice to terminate his employment on 31 July 1986.
19. The issue that was said to arise, according to Popplewell P, giving the judgment of the Employment Appeal Tribunal at 959 F, was:

"…was what happened in the correspondence a variation of the original notice of dismissal so that the notice effectively terminated on 31 July or was the effect of the correspondence that the county council withdrew the original notice of dismissal and issued a fresh notice?"

Popplewell P referred to a number of authorities, to which we will refer, and also to TBA, and concluded as follows, at 964H:

"The facts in the cases to which we were referred do not assist in the decision to which we have to come. The form of the letter of 20 June has to be construed according to the ordinary canons of construction. It seems to us to indicate a withdrawal of the original notice and the issue of a fresh notice, much more clearly than simply a variation of the original date. We see nothing in the policy argument to lead us to a contrary decision."

And, consequently, it arrived at the conclusion that what the parties had done was withdraw the original notice and issue a fresh notice, albeit there was no reference to such withdrawal. The present case, of course, pushes the matter further than the decision in Staffordshire County Council, because here there was no fresh letter of dismissal, and the very letter of 17 March which states that the last day of employment was 31 March, refers back to the original letter. But we agree with the Tribunal, and can see no error of law in the Tribunal's Decision in concluding that in effect what this amounted to was a withdrawal of the original notice prescribing termination on 31 May, and a substitution, by way of a fresh notice, of a period terminating on 31 March. On that ground alone, this Tribunal can be upheld.

20. However, should it have been necessary, we would have concluded that the majority decision of the Court of Appeal in TBA was per incuriam, and should not be followed. The result of the Court of Appeal decision is, as we have indicated, of some significance, if it indeed means that there can never be a variation of an original notice without its express or, in the light of this decision and that in Staffordshire, implied, withdrawal, for the reasons that we have earlier given in this judgment.
21. A number of authorities - not of course in themselves binding on the Court of Appeal, though it was obviously important, given the number of them, that the Court of Appeal would have wished to consider their consequences - were not referred to in the decision in TBA. It does not appear from either the ICR or IRLR reports that those cases were cited.
22. At that time, there was a number of significant decisions of the National Industrial Relations Court (NIRC), the Queen's Bench Division and the Employment Appeal Tribunal, all of which allowed for variation of original notices of dismissal. The first was a decision of the NIRC, per Donaldson P, McAlwane -v- Boughton Estates Limited [1973] ICR 470. At 472 Donaldson P said as follows:

"The statutory provisions are intended to deal with the situation in which during the running of notice of dismissal by the employer the employee unilaterally decides to terminate his employment on an earlier date, and leaves with or without notice to the employer. In that situation Parliament has decided that the employee will preserve his rights only if he gives written notice of his intention. But there is a much more common situation illustrated by this case, in which the employee says to the employer:

"You have given me notice terminating my employment as from (some future date), but it would suit my convenience better, and may not inconvenience you, if I left on (an earlier date). Do you agree?"

Mr Roberts says that as a matter of law, if the employer agrees, there are two possible analyses. First, it may be that the employer, by agreeing, is varying his notice of dismissal and is substituting an earlier date. In that case, as Mr Roberts concedes, the effective instrument for terminating the contract of employment remains the employer's notice, albeit the date upon which the notice takes effect is varied at the request of the employee. But he says that there is an alternative legal analysis, namely that the employee is really saying, "Let us disregard this notice which you have given me, and let us mutually agree that the contract of employment shall be terminated on some earlier date."

And Sir John Donaldson concludes at 473:

"We would further suggest that it would be a very rare case, indeed, in which it could properly be found that the employer and the employee had got together and, notwithstanding that there was a current notice of termination of the employment, agreed mutually to terminate the contract, particularly when one realises the financial consequences to the employee involved in such an agreement. We do not say that such a situation cannot arise; we merely say that viewed in a real life situation it would seem to be a possibility which might appeal to a lawyer more than to a personnel manager."

23. As long ago as 1973, the very problem which we have identified in this case, and which was not put before the Court of Appeal nine years later, was thus being raised by Sir John Donaldson; and it appeared to be the obvious answer to Sir John Donaldson and the other experienced members of the Tribunal, Mr Boyfield and Mr Roberts, with whom he was then sitting, that there could be a variation, without the procedural superfluity of an express, or possibly implied, withdrawal of the original notice. Those important words of Sir John Donaldson, and, indeed, the case itself do not appear to have been considered in TBA.
24. In the next authority, which has been referred to us by Mr Pilgerstorfer, and which was referred to by Popplewell P (as was McAlwane) in Staffordshire County Council, is a decision of Phillips J in Tunnel Holdings Ltd -v- Woolf [1976] ICR 387; although that case itself refers to an earlier decision, to exactly the same effect, also of Donaldson P in the NIRC, in Glacier Metal Co Ltd -v- Dyer [1974] 3 All ER 21. Phillips J at 392F in Tunnel Holdings referred to McAlwane, Glacier and a number of other cases, as follows:

"What they show is that, once the employer has given notice terminating the contract, and there is before the notice expires some form of discussion between employer and employee about the employee's going earlier, it is always a question of precisely what is done and said, as to whether the true view is that by agreement a new date had been substituted for the date in the notice, or whether the employee is to be taken to have served a unilateral notice terminating his employment."

One matter, to which Phillips J does not refer, as further complicating the situation, would be that in some way a Court is precluded from concluding that there has been a variation of the notice by the words of what is now section 97(1)(a). In Tunnel Phillips J did not think so, and we too are satisfied it does not. When there is a variation of the notice, the notice expires on the new date, as does the contract of employment.

25. Closer in time to TBA, because reported in the same year, was CPS Recruitment Ltd -v- Bowen [1982] IRLR 54, a decision given by Neill J, as he then was, another distinguished Judge, sitting with Mrs Lancaster and Mr Cooper, and, once again, the Employment Appeal Tribunal came to the conclusion at paragraph 16:

"We have no doubt whatever that the Tribunal reached the right conclusion that, on a proper construction of all the facts and circumstances and the documents, this was a case where the date specified by the employers in the original notice had been varied by agreement between the parties, and was not a case where any notice had been given by the employee to terminate his contract."

Had it been necessary, therefore, we would have wished to have reconsidered TBA and to have preferred the straightforward thinking of the minority judgment in TBA, given by Ackner LJ, and in particular at 692C, where he simply said as follows:

"I agree with the Employment Appeal Tribunal that Mr Morland did not give a notice which terminated his employment. What he did was to make a request to vary the date in his employer's notice from 2 August to 7 June, subsequently agreed as 6 June. The result of that agreement was that the employer's notice took effect on 6 June. Thus, the contract of employment was terminated by a notice given by his employers."

That is a straightforward interpretation of section 97(1)(a), which does not import any special problem of causation and which implies the words which Waller LJ concluded would have to be added, namely the date on which the notice as amended (if amended) expires.

26. We would agree with Ackner LJ, and indeed adopt the words of Sedley LJ in Fitzgerald, that one must take into account what has happened between the parties over time, and agree with the Employment Tribunal that in this case the date when the notice expired, being the original notice as amended by the subsequent letter, was 31 March 2003. This appeal is therefore dismissed.