United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ORLANDO HOLLOWAY (of Counsel) Instructed by: MITIE Security Ltd Legal Services 113 Atlantic House Perimeter Road East Gatwick Airport RH6 0JJ
For the Respondent	MR ABDIRIZAK AHMAD IBRAHIM (The Respondent in Person)


 


SUMMARY

UNFAIR DISMISSAL

Dismissal/ambiguous resignation

Whether Claimant dismissed under s95(1)(a) Employment Rights Act 1996. Security guard removed from site. Attempts to find alternative work. No pay in the meantime. No actual dismissal – Appeal allowed.

HIS HONOUR JUDGE PETER CLARK

1. This case is proceeding in the East London Employment Tribunals. The parties are Mr Ibrahim, the Claimant, and Mitie Security (London) Ltd, the Respondent. I shall so describe them. This is an appeal by the Respondent against the Judgment of Employment Judge Hallen, sitting alone at a pre-hearing review held on 15 October 2009, in which it was held that the Claimant was dismissed by the Respondent from his employment with effect from 23 October 2008. That Judgment with Reasons was promulgated on 29 October 2009.

Background Facts

2. The Claimant commenced his employment with the Respondent on 23 July 2003. He worked as a security supervisor on the Respondent's contract at South Quay Plaza III. On 18 September 2008 the Respondent removed him from that site on the grounds, the Judge found, that he did not bond with management colleagues. However, on 22 September 2008 the Respondent said that he had been removed from the site at the request of the client. On that day the Respondent wrote to the Claimant in these terms:

"Dear Abdirizak,

I write to confirm the discussions held at the meeting on 19 September 2008. In the meeting it was explained to you that unfortunately, the client has requested that you do not return to the site and that you are removed from your position. This request was finalised after several requests by the company for the client to allow you to remain on site and for us to develop you to the standard they required, however, these requests were denied.

This has resulted in the company having no alternative other than to consult with you with regards to potentially issuing notice on your terms and conditions or employment due to 'third party pressure' from the client.

We agreed a consultation period of four weeks and throughout this time we will try to find you an alternative position within the company. With this in mind, I gave you a copy of our London region's vacancy list. Please contact me as soon as possible if there is any vacancy you may be interested in, in order to arrange an interview for you.

Unfortunately, and as advised in the meeting, should a position not be found for you within these four weeks, the company could have no alternative other than to issue you notice and terminate your employment due to the client request which constitutes 'some other substantial reason'.

In view of the above, I would ask that you attend a further meeting on Friday, 17 October 2008 at 9.00am at our offices in Shand Street with Stuart Wilkie to discuss the situation and the way forward. As advised, unfortunately, if an alternative position is not found for you by this date, this meeting could result in you being issued notice to terminate your employment from the company.

I trust this clarifies the situation; however, should you have any queries with regards to the above, please do not hesitate to contact me."

3. In the period 22 September 2008 to 23 October 2008 no alternative employment was found for the Claimant, nor was he offered interviews for employment. He was sent lists of vacancies. On 29 September 2008 the Claimant sent a written grievance to the Respondent; he headed it "Harassment and Discrimination case". He did not relate the matters of complaint to his age, race, sex, religion or otherwise. The Respondent's Human Resources Manager, Ms White, responded on 1 October 2008 arranging a meeting with Neil Holmes, Senior Contracts Manager, on 6 October 2008. That grievance hearing took place on that date. The Claimant declined to sign the notes of meeting.
4. On the same day Mr Holmes e-mailed Nick Clegg, a Manager, in the following terms:

"Nick

As discussed, please can you ensure the above S/O (Security Officer) is offered work. I believe he was working as a night S/O at South Quay Plaza before being removed from the contract. He is currently under four weeks consultation so if we can not relocate him he will be made redundant."

5. A further meeting to discuss the outcome of his grievance was arranged for 15 October 2008. The Claimant did not attend. He wrote to Mr Holmes on 20 October 2008 and 27 October 2008. In the second letter he indicated his intention to file:

"My case with ET on the basis of serious harassment, discrimination and victimisation grounds."

6. On 28 October 2008 the Respondent invited the Claimant to a meeting on 31 October 2008. He again did not attend, but lodged his form ET1 at the Tribunal on 6 November 2008. In that claim form he complained of unfair dismissal, contending that his employment ended on 18 September 2008 when he was removed from the site and race discrimination, including harassment. He completed the form ET1 without professional assistance. By their form ET3, the Respondent contended, among other things, that the Claimant neither resigned nor was he dismissed.

ET Discussion

7. In relation to the question of dismissal the Employment Judge directed himself to s.95 of the Employment Rights Act 1996, noting the definition of actual dismissal by the employer under s.95(1)(a) and constructive dismissal under s.95(1)(c).
8. In finding that the Claimant was dismissed on 23 October 2008 the Judge set out his reasoning at paragraphs 9 to 10 thus:

"9. In this case, the Tribunal is satisfied that on the balance of probabilities the Claimant was dismissed by the Respondent at the end of the four-week period specified in the letter of 22 September to the Claimant. This letter was written to the Claimant following his meeting with the Respondent at which he was advised that he had been taken off security duties at the site at which he had been employed since the commencement of employment. It had been stated in that letter that he had been removed due to a complaint from a client. However, in an earlier discussion with the Claimant he was told that he was being removed because he did not bond with management. Nevertheless, in the letter to the Claimant, he was advised that the Claimant would, during the following four-week consultation period, find alternative employment for him failing which he "could" be dismissed for some other substantial reason. This assertion was further repeated in an internal email between the Respondent's officers on 6 October 2008 when it was confirmed that the Claimant was currently under four weeks consultation in order to relocate him and if he could not be relocated he would be dismissed by reason of "redundancy". In the absence of the Claimant being found suitable alternative employment, it is clear to the Tribunal that the Claimant was dismissed at the conclusion of the four-week consultation period by the Respondent by reason of some other substantial reason as asserted by the Respondent. It is clear to the Tribunal that the Claimant did not resign from his employment and had been removed from the site at which he had been employed by the Respondent from the commencement of his employment. This removal was done by the Respondent pending a search for suitable alternative employment and that, as a consequence, no such suitable employment being found for the Claimant, the Claimant was dismissed by the Respondent at the conclusion of that four week period by the Respondent.

10. It is also important to note that the Respondent stopped paying the Claimant his normal wages and salary upon his removal from the site on or around 22 September 2008. This is also in the Tribunal's view an indication that the Respondent was in the process of terminating the Claimant's employment which eventually happened on 23 October 2008."

9. As to the claim of racial discrimination the Respondent accepted that if the Claimant was actually dismissed he need not raise a grievance under the statutory grievance procedure. However, the Judge found that there had been no step 1 grievance raised in relation to pre-dismissal discrimination; accordingly those complaints were dismissed (paragraph 12).

The Law

10. The Employment Judge found that the Claimant had not resigned (paragraph 9). He was not constructively dismissed under s.95(1)(c) Employment Rights Act 1996. Rather, that in removing the Claimant from the site, not paying him wages and failing to find him alternative employment, his employment was terminated by the employer effective on 23 October 2008 (see s.95(1)(a) Employment Rights Act 1996).
11. In my judgment Mr Holloway is correct in advancing the following propositions of law:

"1. A contract of employment is only terminated by an employer if there is a specified or ascertainable date on which the contract is to cease (Heseltine Lake & Co v Dowler [1981] ICR 222 ).

2. Dismissal to be effective must be communicated to the employee (Hindle Gears Ltd v McGinty [1985] ICR 111).

3. A warning that dismissal is likely or even that dismissal is inevitable by a certain date will not amount to a dismissal. Notice to terminate a contract of employment must either state the date of termination or contain material from which the date can be positively ascertained (Morton Sundour Fabrics Ltd v Shaw [1967] 2 ITR 84, Rai v Somerfield Stores Ltd [2004] IRLR 124)."

The Appeal

12. By his answer to this appeal the Claimant purported to raise a cross-appeal. That was considered by HHJ Serota QC on paper. He concluded that the Claimant was not raising a true cross-appeal; he was seeking to uphold the Employment Judge's decision. That said, and in fairness to Mr Ibrahim, who appears in person, he has raised with me the possibility that his employment was ended by the Respondent on 18 September 2008 when he was removed from site. Mr Holloway takes no objection, but has dealt with that point and I shall return to it.
13. In advancing the Respondent's appeal, Mr Holloway submits that it is plain, applying the law to the facts of this case, that the Claimant was not dismissed by the Respondent, whether summarily or on notice.
14. He points out that, at paragraph 5 of the Reasons, the Employment Judge misstates the Respondent's letter of 22 September 2008 in saying:

"He (the Claimant) was told in the letter that if no alternative employment could be found for him the company would have no alternative other than to issue him with notice and terminate his employment for some other substantial reason."

That is, I accept, not what the letter says. The letter uses the word "could" rather than "would" as appears from my earlier recitation of that letter. That said, that point is not conclusive in my view since again it will be seen that later in his Judgment the Judge uses the word "could" and indeed places it in parenthesis.

15. However, what is clear to me is that the letter of 22 September 2008 did no more than give a warning to the Claimant that if no alternative employment was found for him in the next four weeks the Respondent might then be in the position of having to give him notice of termination. I interpose that by September 2008 the Claimant had completed five years of service and thus was entitled to a minimum of five weeks notice under s.86(1)(b) Employment Rights Act 1996.
16. On the facts of this case that point was never reached. There was no ascertainable effective date of termination. The four-week period, ending on 23 October 2008, merely triggered the possibility of dismissal, either on notice, or perhaps summarily with pay in lieu of notice. Thus, applying the law as accurately stated by Mr Holloway, the Employment Judge was wrong to find that the Claimant was actually dismissed by the Respondent on 23 October 2008. The appeal against that finding must succeed.
17. As to the date 18 September 2008, when the Claimant was removed from site, I accept Mr Holloway's submission that that could not, on the facts of this case, be construed as summary dismissal. Immediately thereafter on the following day a meeting took place, in turn followed by the letter of 22 September 2008 which made it clear, in the way not uncommon in the security industry, that the Respondent would look for alternative employment on another site for the Claimant. Until such employment was found he would not be paid. It seems that, again, in common with other employers in the industry, no work means no pay.
18. One aspect of the case troubles me and I have raised it with the parties in the course of discussion. It is clear from the nature of the Claimant's grievance and the threat of Employment Tribunal proceedings that arguably he was alleging a repudiatory breach of contract on the part of the Respondent. Removal from site; no pay and alleged harassment and discrimination is capable of amounting to a breach of the implied term of mutual trust and confidence.
19. Further, a Court or Tribunal may infer that the employee has accepted the breach by commencing proceedings, see e.g. Gunton v Richmond-upon-Thames London Borough Council [1980] ICR 755 (CA) (Shaw LJ dissenting), although Mr Holloway is right to refer me to paragraph 47 of the Judgment of HHJ Burke QC in Rai v Somerfield Stores, where the EAT deal with a similar argument in that case and rejected it.
20. However, all of this is academic because, as Mr Holloway submits, this is not an argument that was deployed below. It is not something which I should entertain for the first time on appeal requiring, as it would, further findings of fact by the Employment Tribunal, and thus, applying ordinary Kumchyk principles I do not entertain that possible way in which the Claimant's case could have been put below.
21. In these circumstances this appeal is allowed and the Employment Judge's finding that the Claimant was dismissed by the Respondent is set aside and instead there be a declaration that he was not dismissed.