United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J WILLAN Representative Free Representation Unit 6th Floor 289-293 High Holborn London WC1V 7HZ
For the Respondent	MR J DAVIES (Of Counsel) Instructed by: London Borough of Haringey Corporate Legal Services Alexandra House 10 Station Road Wood Green London N22 7TR

SUMMARY

For UKEAT/0095/06/LA

EAT held that on the factor of this case the letter of dismissal was unambiguous and there was therefore no place for the application of the contra proferentem rule of construction. There was therefore no need to follow Chapman v Letheby and Christopher Ltd [1981] IRLR 441.

For UKEAT/0636/05/LA

At the hearing of this Appeal there was a dispute between the parties as to what documents were before the Chairman when she refused a review. Order made under Barke v Seetec Business Technology Centre Ltd [2005] ICR 1373.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an Appeal from the decision of a Chairman (Miss A M Lewzey) (sitting alone at London Central Employment Tribunal on 12 July 2005. The judgment was sent to the parties and entered in the Register on 29 July 2005. The Chairman held that the Appellant had shown no grounds that it was not reasonably practicable for her to present her claim within the three-month time limit in relation to the complaint of unfair dismissal nor had she shown any grounds that persuaded the Chairman that it was just and equitable to extend time in relation to her discrimination claims. The claims were therefore dismissed.
2. There was a second appeal by Miss Mehta arising from the refusal of the same Chairman to review her original decision. As a result of discussions between the parties' representatives at the hearing of those two appeals it was agreed that the second appeal should be adjourned pending the decision on the first appeal.

The Material Facts

3. At a hearing before Miss Lewzey on 12 July 2005 Miss Mehta did not attend and the Respondent was represented by Mr Jake Davies of Counsel.
4. The material facts are set out at paragraphs 1 – 6 of the Employment Tribunal Decision where the Chairman said this:

"1. This is a Pre-Hearing Review to determine the following issues: firstly, what was the effective date of termination of Miss Mehta's employment; secondly, is the complaint out of time; and, thirdly, was it reasonably practicable for the complaint to be presented within the three-month time limit in the case of the unfair dismissal or, in the cases of race and/or sex discrimination, is it just and equitable to extend time?

2. I have heard evidence from Mr T Sadler, the Principal Personnel Consultant, by means of a written witness statement. I have also taken into account Miss Mehta's witness statement. The facts are as follows.

3. On 27 May 2004, at page 111 – 112, the Respondent sent Miss Mehta notice of termination of termination of her employment by reason of redundancy. This letter gave 12 weeks' notice, nine of which were to be served as notice and in respect of three there would be pay in lieu of notice. The letter expressly states that the last day of service will be 31 July 2004. This was confirmed again in the Respondent's letter of 21 July 2004, which appears at page 119 – 120.

4. On 26 July, at page 125 – 126, Miss Mehta wrote to Ms Hennigan and it is clear from this letter that she understood that she was being dismissed and she also states that she intends to make a claim for unfair dismissal.

5. On 28 July, there was to have been an interview in relation to alternative employment. That was postponed at Miss Mehta's request until 2 August, but the letter that appears at page 127 – 128 confirms that from 31 July Miss Mehta no longer remained an employee of the Council. The Council's redundancy policy provides no provision for appeal against redundancy, that is at page 234.

6. On 18 August, at page 152, the Respondent wrote to Miss Mehta stating:

"When you were issued your notice of redundancy on 27 May you were sent forms F71 and HCRP for completion and return. Despite me urging you to return these forms they have not been received to date and as a consequence it is not possible to pay you the voluntary redundancy payment to which you are entitled. Enclosed are the relevant forms for you to complete and return to Lorraine Johnson in the pre-addressed envelope no later than 3 September. Failure to comply with this deadline will result in a compulsory redundancy payment based on the statutory maximum limit."

Miss Mehta was paid the statutory redundancy payment of £4,860 on 9 September."

The Employment Tribunal's conclusions

5. Having set out Section 97(1)(a) of the Employment Rights Act 1996 and referred to Chapman -v- Letheby & Christopher Ltd [1981] IRLR 441 the Chairman went on to say this:

"9 The letter of 27 May 2004 clearly states,

"Your notice period, which will incorporate nine of your twelve weeks' notice, will commence with effect from 30 May 2004 and your last day of service will be 31 July 2004. The remaining three weeks' notice will be paid to you in lieu"

10. From Miss Mehta's letter of 26 July, she clearly understood that the effective date of termination was 31 July. The letter of 28 July clearly says that her last day of service was 31 July. In my judgment, she fully understood that the effective date of termination was 31 July.

11. I have considered the arguments that Miss Mehta puts forward in her witness statement. Those arguments relate to the date of receipt of payslips, the date of receipt of her redundancy money and the notice period and the fact that she was paid part of that in lieu of notice. These are matters that do not go to the effective date of termination. The Respondent did give 12 weeks' notice but paid three of these in lieu, so that the effective date of termination was nine weeks after the notice. If the notice is less than is contractually agreed, that does not affect the effective date of termination. The effective date of termination for Miss Mehta was 31 July 2004.

12. Therefore, the Claim Form was due to be presented by, at the latest, 30 October 2004. It was not presented until 8 November and is therefore out of time. I therefore have to consider whether, in relation to the complaint of unfair dismissal, it was reasonably practicable for the claim to have been presented within the three-month time period in accordance with section 111(2)(b) of the Employment Rights Act 1996 and, in relation to the complaints of sex discrimination and race discrimination, I have to consider whether it is just and equitable to extend time under section 76(5) of the Sex Discrimination Act 1975 or section 68(5) of the Race Relations Act 1976. I have taken the following matters into account.

13. There is no explanation from Miss Mehta as to why her claim was not presented earlier. She knew of her right to bring a claim as she mentions this in her letter of 26 July. Unison were assisting Miss Mehta during her period of notice. This is not a case where it can be said that Miss Mehta did not know the full facts before the three-month time period expired on 30 October. She received advice from the Citizens' Advice Bureau. She has produced no medical evidence to suggest that there was something preventing her from presenting her claim. I note that in the Claim Form a number of the complaints took place some time ago and reference is made to matters in 2002 and earlier.

14. Prior to Miss Mehta's redundancy, she had been disciplined and received a final written warning in March 2004. She lodged an appeal which was scheduled during her period of notice but, at page 140, she was notified that she was no longer within the Respondent's employment.

15. Miss Mehta has shown no grounds that it was not reasonably practicable for her to present her claim within the three-month time limit in relation to the complaint of unfair dismissal. Neither has she shown any grounds that persuade me that it is just and equitable to extend time in relation to her discrimination claims. In these circumstances, her claims are out of time and there is no jurisdiction to consider any of her claims and her Claim Form is dismissed in its entirety."

The Notice of Appeal

6. At a Rule 3(10) Hearing on 1 February 2006 His Honour Judge Burke QC permitted the appeal to go through to a Full Hearing but limited to one ground of appeal only. That ground of appeal is as follows:

"The Tribunal misdirected itself as to the proper construction of the Notice Letter dated 27.05.04 and therefore erroneously concluded that the Effective Date of Termination of the Appellant's employment was 31.07.04, in particular by failing to apply the contra proferentem rule contained in Chapman-–v- Letheby v Christopher Ltd [1981] IRLR 441. The Tribunal should have decided that upon the proper construction of that letter the effective date of termination was 22.08.04"

7. Before dealing with that ground of appeal it is important to set out the whole of the dismissal letter in full:

"Dear Ms Mehta

I am writing to formally advise you that as a result of the Finance and Performance restructuring, your substantive post of Finance Officer (Scale 6) has been deleted. This means that your employment with Haringey Council will be terminated on the grounds of redundancy.

Your notice period, which will incorporate 9 of your 12 weeks notice, will commence with effect from 30^th May 2004 and your last day of service will be 31^st July 2004. The remaining three weeks notice will be paid to you in lieu. Efforts to redeploy you into suitable alternative employment will continue until your last day of service and should a suitable position be found and accepted prior to 31^st July 2004, this notification will no longer be applicable. All outstanding Toil, annual and flexi leave must be taken before your last day of service. You are required to work your contracted hours and to report for work at the times specified by your manager during the course of your notice period.

The HR Support Team (payroll services) and the Pension Section will be notified accordingly and requested to send you your Income Tax Form P45 and deal with any outstanding financial or superannuation matters. Redundancy estimates for the compulsory and voluntary scheme are attachéd for your information. Should you decide to opt for voluntary redundancy, you will need to complete and return the attached forms S71 and HCRP, no later than 25^th June 2004. This will not cease the redeployment process, which will continue until your last day of service.

I enclose two copies of this letter, one of which you should sign and return in the attached envelope. The other copy should be given to your local Department of Employment Office if you register for Job Seekers Allowance.

I draw your attention to the decision of the Personnel Management Panel on 26^th July 1993 relating to the re-employment of any person included in the special early retirement/redundancy schemes, a copy of which is available from the Personnel Section.

I regret the formal nature of this letter, however, it is necessary to comply with the various statutory requirements.

Yours sincerely,

For Director of Social Services

Cc HR Support Team

Pensions Section

Assistant Director, Older People's Services

I hereby acknowledge receipt of the original letter dated 27^th May 2004 terminating my employment on the grounds of redundancy on 31^st May 2004.

Signed ………………. (Naina Mehta)

Dated ……………………………"

The copy letter was not signed by Miss Mehta.

The Law

8. Section 97 of the Employment Rights Act 1996 says this:

"(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…."

(b) (Not relevant)

(c) (Not relevant)

9. Where the employer terminates the contract, pays the sum of money to the employee to cover the notice period and dispenses with the employee's services for that period, the dismissal may take one of two forms. As the Employment Appeal Tribunal pointed out in Adams -v- GKN Sankey Limited [1980] IRLR 416, it may mean either that the employee is dismissed with notice but is given a payment in lieu of working out that notice, or that the employee is dismissed immediately with the payment being made in lieu of notice. If the dismissal falls into the former category, the effective date of termination (EDT) is the date when the notice expires; if it falls into the latter category then the EDT will be when the employment terminates. Where the termination is by letter, it is a matter of construction which formed the dismissal date.
10. In Chapman -v- Letheby and Christopher Ltd, supra, Browne-Wilkinson J said this:

"What then is the proper construction of the letter? It is important to remember that the letter was sent to an employee who, if the employers' contention is right, was immediately dismissed on receipt of that letter. In our view two things flow from this. First, the construction to be put on the letter should not be a technical one but should reflect what an ordinary, reasonable employee in Mr Chapman's position would understand by the words used. Secondly, the letter must be construed in the light of the facts known to the employee at the date he receives the letter.": paragraph 13.

11. In that case the Employment Tribunal found there were real difficulties in seeking to decide what a reasonable employee would understand by the words used in the construction of that particular letter. However, Browne-Wilkinson J went on to say this:

"Even if we are wrong in this view and the meaning of the letter is truly ambiguous, there is a principle of construction that words are interpreted most strongly against the person who uses them. We think this principle is peculiarly applicable to cases such as the present where an employer, by an ambiguous notice, may mislead the employee as to the effect of the document the responsibility for the wording of which lies entirely in the hands of the employer. It seems to us right that an employer who relies on a notice served by him as having a particular meaning should be required to demonstrate that it unambiguously has that meaning. If the employer can rely on ambiguities being resolved in his favour, the employee may be left in doubt as to where he stands and may lose his statutory rights.": paragraph 16.

That is the so called contra proferentem rule.

12. It is important to focus on the Notice of Appeal. The sole ground of appeal is that the Employment Tribunal misdirected itself as to construction of the notice letter in particular by failing to apply the contra proferentem rule. It is quite clear to me that the contra proferentem rule only arises if the meaning of the letter of dismissal is truly ambiguous. In other words it has no application when the meaning of the letter is unambiguous and clear.
13. I therefore turn to consider the Chairman's reasons. At paragraph 3 the Chairman analyses the dismissal letter of 27 May 2004 and noted that the letter expressly stated that "your last day of service will be 31^st July 2004." Although the Chairman does not refer to it the phrase "your last day of service" is repeated later in the same paragraph of the dismissal letter and is quite clearly a reference back to 31^st July 2004. Should there be any doubt the next phrase is "and should a suitable position be found and accepted prior to 31^st July 2004, this notification will no longer be applicable." Again, the emphasis is on the Respondent's employment ending on 31^st July 2004. On the second page of that dismissal letter there is an acknowledgment (admittedly not signed by the Appellant). It says this:

"I hereby acknowledge receipt of the original letter dated 27^th May 2004 terminating my employment on the grounds of redundancy on 31^st July 2004."

In other words there are four independent references to the last day of service and termination of employment on 31 July 2004 in that letter. It is clear from the dismissal letter that two copies of that letter were sent to the Appellant.

14. The Chairman notes that the significance of 31 July 2004 was confirmed in a letter dated 21 July 2004 from the Respondent to the Appellant which says this:

"I am concerned that you may still not understand your position. We agreed that you had been given two months by the Council to find a suitable job, and that in the usual way, if you did not find a job, you would be made redundant on 31^st July 2004 and would be made an appropriate redundancy payment. You told me you had been informed by Human Resources about this."

I confirmed that you will be made redundant on the 31^st July 2004 and obviously your salary will cease as of then unless you are appointed to a post beforehand."

EAT Bundle pages 111 – 112.

This is dealt with in the Employment Tribunal Judgment at paragraph 3.

15. The Chairman then goes on to refer to a letter written by the Appellant on 26 July 2004: EAT Bundle pages 112 – 114. That letter is written in answer to the Respondent's letter of 21 July 2004 just referred to. Nowhere does it suggest that the Appellant understood anything other than the fact that she was dismissed with effect from 31 July 2004. Indeed, the whole of the letter is concerned to argue the validity of the selection for redundancy and the procedures followed. It ends by making it clear that the Appellant intends to bring a claim for unfair dismissal at the Employment Tribunal. Finally, the Chairman refers to the fact that the next letter from the Respondent to the Appellant dated 28 July 2004 again emphasises or re-emphasises the fact that the effective date of termination was 31 July 2004 and was so understood by the Appellant. The relevant part of that letter says this:

"I confirm that I have received the copy of your letter dated 26^th July 2004 to Mary Hennigan which was circulated to me. I must advise you that whilst acknowledging that you have registered a number of concerns regarding your employment position that management are not prepared at this point to vary your last day of service which remains as 31^st July 2004. I confirm to you therefore that from that date you will no longer be an employee of the Council."

The Chairman's conclusion was that this Miss Mehta fully understood that the effective date of termination was 31 July: Judgment paragraph 10.

16. The Chairman went on to consider the arguments put forward by the Appellant in her witness statement. The Appellant herself was not present at the Hearing. The witness statement is undated and simply asserts the Appellant's case as advanced at the Tribunal and before me. The Chairman's conclusion is that the effective date of termination for the Appellant was 31 July 2004.

Employment Appeal Tribunal Decision

17. I agree with the Chairman's reasoning. The evidence is overwhelming that the letter of dismissal itself dated 27 May 2004 and the subsequent correspondence make it crystal clear that the last day of service was 31 July 2004 and there was no question of the Appellant working for the Respondent thereafter. The effective date of termination was 31 July 2004.

Conclusion

18. For these reasons I find that the dismissal letter was unambiguous and there is no place for the application of the contra preferentem rule in this particular case. The Appeal is therefore dismissed.

UKEAT/0636/05/LA

ORDER

HIS HONOUR JUDGE BIRTLES

19. This Appeal was adjourned pending my decision in the parallel case of EAT/0095/06/LA. For the reasons given in my reserved judgment in that case that appeal is dismissed. It follows that I have to consider what should be done in respect of EAT/0636/05/LA. As discussed at the hearing there was a critical question which needs to be answered before the Appeal can be heard. In the appeal bundle for both appeals there appears to be a number of documents which the Appellant wishes to rely on but which the Respondent disputes were before the Chairman when she made her review decision on 9 September 2005. The Chairman refused to review her original decision either on the grounds that the decision was made in the absence of the Appellant or that the interest of justice required such a review. There are Amended Grounds of Appeal which were finalised on 1 February 2006.
20. Since the parties cannot agree what documents were before the Chairman when she made her decision on the review it is necessary for me to make a Barke request and the request will be in the following form:

The Chairman is requested to state whether or not she had before her and considered the following documents when she gave her judgment on an application for a review on 9 September 2005 in case number 2204700/2004:

(1) Letter 10 August 2005 from the Appellant to the Chairman together with (a) medical certificate dated 14 July 2005 and (b) doctor's letter dated 8 August 2005 (EAT Bundle pages 140 – 143;

(2) Letter from the Appellant to the Chairman dated 26 August 2005 together with a document headed 'Notes' but undated (EAT Bundle pages 145 – 148);

(3) Document headed additional information, Organisation Change/Restructuring Process History (EAT Bundle pages 149 – 156);

(4) Occupational Health advice in response to management referral dated 10 October 2003 (EAT Bundle pages 187 – 189;

(5) This information is to be supplied to the EAT within 28 days of the date of this Judgment being handed down.