United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Robert M Cruickshank, Solicitor Messrs Allan, Black & McCaskie S.S.C. 151 High Street Elgin Moray IV30 1DX
For the Respondents	Mr John Cunningham, Consultant Croner Consulting Litigation Dept. Croner House Wheatfield Way Hinckley Leicestershire LE10 1YG


 


SUMMARY

The Employment Tribunal held that the claimant's claim was time barred, having been presented more than three months after his effective date of dismissal. The claimant had sought to argue that he was entitled to the benefit of the extension provisions of paragraph 15(1)(b) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 under reference to his having lodged an appeal against dismissal which he submitted could be treated as the lodging of a grievance. He also sought to rely on the date on his P45 as being indicative of the effective date of dismissal. The Tribunal rejected both arguments. On appeal, the claimant argued that the effective date of dismissal was the date shown on his P45, as his dismissal letter was unclear. The appeal was dismissed: the letter of dismissal was clear and unambiguous and showed that the effective date of dismissal was more than three months prior to the presentation of the claimant's application to the Tribunal.

THE HONOURABLE LADY SMITH

Introduction

1. The claimant, who is the appellant in this appeal, was employed by the respondents from 14 August 2000 until he was made redundant on 6 September 2005. He appealed against his dismissal, his appeal was rejected and he subsequently lodged an application with the Employment Tribunal.
2. In a judgment registered on 3 April 2006, an Employment Tribunal sitting at Aberdeen, Chairman Mr J Hendry, sitting alone at a Pre – Hearing Review, held that the claim was time barred.

Background Facts

3. The claimant was employed by the respondents as a production manager. After a redundancy meeting on 6 September 2005, he was issued with a letter of the same date which included the following terms:

"Further to our recent meeting, which took place on 06.09.05, I now write formally to confirm that you have been selected for redundancy and will leave our employment on 06.09.05.

You are entitled to five weeks' notice, which will be paid in lieu.

Redundancy payment, notice payment entitlement are as shown on the attached schedule.

The redundancy money is paid by the cheque attached and pay in lieu of notice by credit transfer to your normal bank account on a weekly basis until the end of your 5 week notice period.

You will also be entitled to any outstanding holiday pay, which is subject to normal deductions and will be paid through the payroll with your final salary payment. The final payroll run will occur after you have left employment. Your P45 and final salary advices will be posted to you as soon as possible afterwards.

You are advised to register as unemployed at your local Job Centre the next weekday after your date of leaving. You may or may not qualify immediately for Job Seekers' Allowance but may separately qualify for National Insurance Credits. These can be important for securing your State Pension Benefits."

4. The claimant appealed against the decision to dismiss him and the appeal was heard on 15 September 2005. By letter dated 15 September 2005, he was advised:

"… I regret to confirm that the decision to dismiss you as redundant was upheld.

Consequently, the details of your redundancy as set out in our letter of 06.09.05 remain unchanged."

5. There were no further avenues of appeal open to the claimant. He was subsequently issued with a P45, the pro forma "Leaving date" paragraph of which had been completed with the date 11 October 2005'.
6. The claimant consulted solicitors who wrote to the respondents claiming that there was no true redundancy situation on or about 25 November 2005. His Tribunal application was lodged on 28 December 2005.

The Tribunal's Decision

7. There were two arguments for the claimant before the Tribunal. One was that the lodging of the appeal and also the sending of the claimant's agent's letter could be regarded as the lodging of a grievance which meant that the claimant was automatically entitled to the extension provisions of paragraph 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004. The other was that the letter of 6 September 2005, when read together with the date on the P45 showed that the employment had not terminated until the notice period expired.
8. The Tribunal rejected both arguments. The claimant was not entitled to rely on the extension provisions because his complaint was one of unfair dismissal and the statutory grievance procedures did not, therefore, apply (paragraph 6(5) of the 2004 Regulations). Otherwise, it was held that the date of termination was not ambiguous. The claimant's employment had come to an end on 6 September 2005. The claim was, accordingly, time barred since it was not presented before 6 December 2005.

Relevant Law

9. The provisions of s.97(1)(b) of the Employment Rights Act 1996 ('the 1996 Act') are, it was agreed, relevant to the issue that arises in this case. They are:

"(1) … 'the effective date of termination'-

…

(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect,".

10. Thus, in the case of employment terminated without notice, any complaint to an Employment Tribunal must be presented prior to the expiry of three months from the date on which termination took effect (s.111(2)(a) of the 1996 Act ).

The Appeal

11. Mr Cruickshank submitted that the Tribunal had erred in law because the words of the letter of 6 September were misleading or the employee could have construed the letter as indicating that he was being dismissed 5 weeks later. The fifth paragraph of the letter gave rise to confusion in respect that it told him that the final payroll run would occur after he left employment. The matter was ambiguous. He referred, in support of his submissions to: Melon v Hector Powe 1980 IRLR 80, London Borough of Newham v Ward [1985] IRLR 509, Dixon v Stenor Ltd [1973] ICR 157 and Chapman v Leitheby & Christopher Ltd 1981 IRLR 440.
12. For the respondents, Mr Cunningham submitted that the Tribunal had not erred. The letter of 6 September was clear and unambiguous. The use of the expression "paid in lieu" showed that notice was not being given and compensation would be paid. The manner of the payment being in weekly amounts did not matter. The authorities relied on by the claimant were in fact supportive of the respondents, as were the cases of I Brindle v H W Smith 1972 IRLR 125 and Robert Cort and Sons v Charman 1981 IRLR 437.

Discussion

13. It was common ground between the parties, rightly so in the circumstances, that to determine the effective date of termination of the claimant's employment in this case, the letter of 6 September required to be examined. That was what the Tribunal did and they decided that it was clear from its terms that the employment ended on 6 September. In so doing they did not, in my view err.
14. Matters required to be examined as at 6 September, when the claimant received the dismissal letter and at that date the P45 had not been issued. Thus the claimant could not, at that stage, have known that it was going to show that his leaving date was 11 October. I accept that, as was stated in the case of Chapman, in construing that letter, a technical approach is not appropriate but the letter should be construed so as to reflect what an ordinary reasonable employee in the claimant's would understand it to mean. Bearing that test in mind, it seems plain to me that what was communicated to the claimant at that date was that he was to leave the respondents' employment on 6 September, that he should register as unemployed at the Job Centre the next working day (i.e. the respondents regarded him as freed of all obligation to them as of 6 September), that he would receive pay" in lieu of notice" (i.e. he would not be required to work his notice period), that that sum would be paid to him on a weekly basis, that he would receive outstanding holiday pay through a payroll run and that the final payroll run which would affect him would occur after the end of his employment (which is what happened). I cannot see that he could have been left in any doubt that all contractual obligations as between him and his employer came to an end on 6 September. It was open to him to take up alternative employment at any time thereafter. The respondents could not, for instance, given the terms of that letter, have called him a week later and asked him to come into work. The fact that they recognised their obligation to pay compensation to him on account of the wages that he would have earned had he continued in their employment throughout the notice period, does not mean that his employment was not terminated until payment of that compensation was complete. As was commented in the case of Robert Cort at paragraph 7:

"… where there is an immediate dismissal with salary in lieu of notice, the effective date of termination is the date of dismissal, not the expiry of the period in respect of which the salary in lieu is paid for."

15. There is nothing in the letter to suggest that, in this case, the circumstances were to be regarded as otherwise.
16. The appeal will, accordingly, be dismissed.