United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL STEWART (of Counsel) Instructed by: Dotcom Solicitors 354 High Road London N17 9HD
For the Respondent	MR JASON GALBRAITH-MARTEN (of Counsel) Direct Public Access Scheme


 


SUMMARY

JURISDICTIONAL POINTS – Claim in time and effective date of termination

Claims rejected as out of time by Employment Tribunal on three alternative bases.

ET decision upheld on the third; actual dismissal by reason of retirement on Claimant's 65^th birthday.

Appeal dismissed.

HIS HONOUR JUDGE PETER CLARK

1. This claim has been proceeding in the London South Employment Tribunal. The parties are Mr Roberts, Claimant, and his former employer Banham Patent Locks Ltd, Respondent. The issue that came before Employment Judge Zuke, sitting alone at a Pre-Hearing Review held on 30 September 2011 was whether the claims raised in the Claimant's form ET1 lodged at the Tribunal on 31 March 2011 were time-barred. It is common ground that all his claims were subject to the three month primary limitation period, subject to the reasonable practicability or just and equitable escape clause, which is not relied on in the Notice of Appeal. Thus the critical question for the Employment Judge was: what was the effective date of termination (EDT) of the contract of employment? The Judge's written reasons for holding that all claims were time barred are dated 27 October 2011.
2. Tantalisingly, Employment Judge Zuke proffered three alternative analyses, each of which resulted in an EDT more than three months before presentation of the form ET1; first, resignation by conduct, relying on an earlier decision of Sir John Donaldson, President, sitting in the National Industrial Relations Court, in Harrison v George Wimpey & Co Ltd [1972] ITR 188. I suggested in Zulhayir v JJ Food Service UKEAT/0593/10, 26 July 2011, unreported, a case to which we have been referred, that Harrison should not be followed, having reviewed the subsequent cases and in particular the Court of Appeal decision in London Transport Executive v Clarke [1981] ICR 355 (see Zulhayir, paragraphs 11-15). I am further reinforced in that view following the recent approval of Clarke by the Supreme Court in Geys v Société Générale [2013] ICR 117, although it is right to say that Mr Galbraith-Marten, appearing for the Respondent, would wish to argue that on the particular facts of this case the Judge was correct in finding that the Claimant had terminated his employment by effectively resigning.
3. Secondly, and in the alternative, the contract was frustrated by reason of the Claimant being remanded in custody on 11 November 2009 on a serious criminal charge, unconnected with his employment with the Respondent, until his acquittal on 14 May 2010. The application of the doctrine of frustration to employment contracts brings back personal memories of the lengthy hearing in which I appeared as counsel for the claimant in the Court of Appeal in F C Shepherd & Co Ltd v Jerrom [1986] ICR 802, which also appears in our bundle of authorities, the case of the apprentice sentenced to a period of borstal training. That hearing was extended on the direction of Mustill LJ that Miss Elizabeth Slade, as she then was, appearing for the employer, and I should consider a number of cases on charter-parties, with which his Lordship was of course most familiar. It is a doctrine, in my experience, which does not sit easily in the employment law setting.
4. Thirdly, and in the further alternative, Judge Zuke concluded that upon analysis and based on his findings of fact, having heard conflicting evidence from the Claimant and Mr Ward, the Respondent's financial director and company secretary, the Claimant was dismissed by the Respondent's letter dated 1 October 2009, taking effect on 9 May 2010, his 65th birthday, by reason of retirement.
5. Having had the advantage of pre-reading the papers and in particular the detailed and helpful written arguments of counsel and had the opportunity to discuss the matter with my colleagues, it seemed to me that the proportionate approach was to hear argument first on the third of Judge Zuke's possible conclusions. That is because on the self-termination and frustration analyses the EDT was, the Judge found, 31 December 2009; however, if Mr Stewart is correct, contrary to Mr Galbraith-Marten's submission that the first two findings are erroneous in law, he must still deal with the third, actual, dismissal on the 9 May 2010 finding. Having raised this possible way forward with counsel, both were content to adopt that course.
6. The background facts leading to the Judge's third conclusion were as follows. The Claimant, who was born on 9 May 1945, commenced his employment with the Respondent as an alarm systems engineer on 3 December 1990. On 1 October 2009 Mr Ward wrote to the Claimant in these terms:

"Dear Mr. Roberts,

Ref: Your Normal Retirement Age (NRA)

Date: 09.05.2010

In accordance with the Employment Equality (AGE) Regulations we write to inform you in accordance with the Retirement Section of your Employee Handbook that your NRA date is as stated above.

If you wish to work beyond the (NRA) you must notify the company at least three months, but not more than six months, in advance of the NRA date stating for what period (which could be for a fixed period or indefinitely) you would like to continue working.

Procedures are as laid down in your Handbook but should you have any queries do not hesitated [sic] to contact me."

7. The Claimant accepts that he received that letter. It was his evidence that he saw Mr Ward and told him that he wished to continue working until aged 70 and Mr Ward agreed to that. Mr Ward denied ever having had any such conversation. The Judge preferred Mr Ward's account, for the reasons given at paragraph 6 of his reasons.
8. The Claimant's last day of work was 8 November, before he was remanded in custody on 11 November until release following his acquittal at trial on 14 May 2010. The Judge found that the Claimant did not communicate at all with the Respondent whilst, as it now emerges, he was on remand. The Respondent's staff made several visits to his home without contact being made. His company vehicle was removed from outside his home in late November 2009. The Judge had a witness statement from the Claimant's daughter, Ms Griffith-Sackey, who was not called to give evidence, asserting that she had telephoned Mr Herbert of the Respondent – again, from whom the Judge did not hear – to say that the Claimant needed time off to deal with a serious family matter and Mr Herbert agreed. That was disputed by Mr Ward, and the Judge did not accept that such a conversation took place (see paragraphs 11 and 12).
9. At paragraph 31 the Judge refers to a submission advanced by Mr Stewart, on behalf of the Claimant below, that Mr Ward's letter did not comply with the provisions of the Age Regulations 2006 by reference to the EAT decision in R&R Plant (Peterborough) Ltd v Bailey, subsequently affirmed by the Court of Appeal (see now [2012] IRLR 503), a case in which Mr Galbraith-Marten appeared for the successful claimant. However, at paragraph 31 Judge Zuke concluded that whether or not a dismissal by reason of retirement was unfair that could not affect his decision on the EDT on this third analysis. An unfair dismissal is still a dismissal, and the issue here was limitation, not the merits of the claim.
10. Against that background we turn to the Judge's third way. At paragraphs 29-30 he held as follows:

"29. For the sake of completeness I considered a third possibility. If there was a dismissal by the Respondent, in my view it took place on 9 May 2010 when the Claimant attained the age of 65. The Respondent had given notice of its intention to retire the Claimant on that date. The Claimant had not made any request to remain in employment beyond that date. Given the unusual circumstance that the Claimant had in effect disappeared, and had been treated by the Respondent as having resigned by about the end of December, it would have been wholly artificial for the Respondent to write to him as his 65th birthday approached to inform him that he was dismissed on the grounds that he had attained the normal retiring age.

30. In the very unusual circumstances in this case, if I am wrong in my conclusion that the contract of employment terminated either by resignation or frustration, on 31 December 2009, I find that the Claimant was dismissed on 9 May 2010 when he attained the age of 65."

11. Mr Stewart submits that the Judge here misconstrued the letter of 1 October 2009. It is not a letter of termination, he argues, effective on 9 May 2010, or at any rate it would not be so construed by a reasonable employee. It was merely a request for information: "Do you wish to retire at age 65 or to continue in employment thereafter?"
12. We cannot accept that submission. We have concluded that on analysis it is a letter of termination by reason of retirement on a specified date (see Morton Sundour Fabrics Ltd v Shaw [1966] 2 KIR 1) subject to the condition that if the Claimant wished to continue beyond that date, he must say so. On the particular facts of this case, as found below, he said nothing, despite the Respondent's attempts to make contact with him. He did not attend work between 8 November and 9 May 2010. In these circumstances, in our judgment, the notice of retirement took effect on 9 May. The Claimant was dismissed by the Respondent on that date. His claims were presented out of time; there is no challenge to the Judge's refusal to extend time. On this basis, regardless of the further points decided against him by the Judge – self-dismissal and frustration – the appeal fails and is dismissed.