Thompson v GEC Avionics Ltd [1991] UKEAT 330_91_0409

EAT
Thompson v GEC Avionics Ltd
[1991] UKEAT 330_91_0409 · 1991-09-04
MR JUSTICE WOOD (PRESIDENT): By an Originating Application dated 20th November 1990 Mrs Thompson alleged unfair dismissal on the basis of unfair selection for redundancy against her employers GEC Avionics Ltd.The case came for a preliminary point to be heard on jurisdiction on the 23rd April this year before an Industrial Tribunal sitting at Ashford in Kent under the Chairmanship of Mr Roose. The facts as recited in paragraph 2 of the Decision can be stated thus quite shortly:
"The applicant contended that she had been given notice of redundancy on 15 August 1990 to terminate on 9 November 1990. On 20 September the applicant served a counter notice on the respondents to terminate her employment on 21 September. Her originating application to the Tribunal was dated 20 November 1990 but was received at the Central Office on 3 January 1991. The application was silent on the date of termination of her employment but Mr Ascough on her behalf maintained that it was the 9 November and that her application was therefore in time.
The respondents contended that the applicant's employment ended on 21 September 1990 the day she left their employment."We have been shown a document in which the Applicant terminated her employment. It is dated the 20th September and reads thus:
"I will be terminating my employment with GEC Avionics as from the 21st September 1990."
That is the next day. Whether that properly analyzed is a counter notice or not that is what she said. She terminated her employment.The first issue therefore, is what is the effective date of termination of this contract of employment? The two dates put forward are the 9th November or the 21st September; depending on which is the correct answer, her application was in time or not in time. The date contended for by the employer, the date of 21st September depends upon whether under the wording of the Act that document terminates the contract in fact, providing the effective date of termination.The relevant provision is Section 55 of the Employment Protection (Consolidation) Act 1978. This is a well known Section but this particular point does not seem to have arisen before. Subsection (1) reads:
"In this Part, except as respects a case to which section 56 applies, "dismissal" and "dismiss" shall be construed in accordance with the following provisions of this section"
Pausing there, the section is applied to Part V of the Act:"(2) Subject to subsection (3), an employee shall be treated as dismissed by his employer if, but only if, - (a)the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice," (b) and (c) I need not read.
"(3) Where an employer gives notice to an employee to terminate his contract of employment and, at a time within the period of that notice, the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer's notice is due to expire, the employee shall for the purposes of this Part be taken to be dismissed by his employer, and the reasons for the dismissal shall be taken to be the reasons for which the employer's notice is given.

(4) 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 that notice expires; (b)in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect; and (c)in relation to an employee who is employed under a contract for a fixed term, where that term expires without being renewed under the same contract, means the date on which that term expires."It seems to us quite clear that when looking at the effective date of termination, which is the important date for the purposes of time limits under this Part of the Act, the Act is concentrating first on the contract of employment, secondly, on the method of termination of the employment and thirdly, on the date of the expiry of the notice or the date of termination of the contract. That seems to us abundantly clear from subsection (4) of Section 55.Turning back to subsection (2), that deals with:

"an employee shall be treated as dismissed by his employer if, but only if, -"

and it sets out those terms but it is subject to subsection (3), that subsection we have already referred to and the argument by Mr O'Hara is that the phrase
"the employee shall for the purposes of this Part be taken to be dismissed by his employer"
means that for the purposes of dismissal, and the effective date of termination, what matters is when the dismissal by the employer becomes effective.We are unable to accept that submission, because it seems to us that the purpose of subsection (3) is to protect a situation where an employee has brought his or her contract of employment to an end within the relevant period, and where an allegation might be made of resignation; hence, the inability of the employee to rely upon that situation as a dismissal for the purposes of Section 57, subsection (1). Moreover, the words are added towards the end of subsection (3) -
"and the reasons for the dismissal shall be taken to be to be the reasons for which the employer's notice is given"
If in fact, the termination by the employee was ineffective to bring the contract to an end and the dismissal and the termination of the contract could only arise from the dismissal by the employer, it seems to us there would be little purpose in inserting those words at the end of the sub-paragraph so as to maintain that the reason for the dismissal was that which was the subject matter of the original notice. It seems to us therefore that the document of 20th September terminating the continuance of the employment was effective and that this contract of employment therefore terminated on the 21st September 1990.In deference to the helpful arguments and submissions of Mr O'Hara may we deal with one or two other matters. He submitted that the wording in Section 55 should be compared with the wording under the provisions of Part VI of the Act dealing with redundancy. First of all as Mr Fodder has said, that is dealing with a different Part of the Act and indeed it is expressly stated in Section 55 that their provisions apply to this Part of the Act namely, Part V.Secondly, without, and I hope we will be forgiven for not doing so, going through every argument advanced by Mr O'Hara on Part VI, it seems to us that in Section 90(1)(e) there is an express provision that the "relevant date" should be:
"the date on which the employee's notice to terminate his contract of employment expires"
and this indicates that for that part of the Act that notice is the effective instrument for terminating the contract. If indeed it had been so intended under Section 55 one would also have expected some specific words to have been inserted.We were referred to two Authorities. Mr O'Hara referred us first to a Decision to which the Industrial Tribunal had itself referred, which was Ready Case Ltd v. Jackson [1981] IRLR 312. He relied upon a passage at the very end of a long judgment given by the learned President at the time, Mr Justice Slynn, which indicated that the Tribunal had in fact taken the termination of the employer's notice as the effective date of termination. Without analyzing that case in the minutest detail it seems to us that it was concerned with the issue whether the employee had been dismissed, rather than when was the effective date of termination for the purposes of the Act, and we would not be inclined without seeing full argument on that matter to feel that we should necessarily be bound by those three lines at the end when there was no indication that that specific point had been argued. Perhaps, more importantly so far as authority is concerned, there is the case in the Court of Appeal to which Mr Fodder kindly drew our attention, called TBA Industrial Products v. Morland [1982] ICR 686. In that case the question of time and time limits was directly material and there was the question whether there had been an earlier termination of the contract of employment by an employee who could have pulled off a perforated form, as I understand it, to terminate his employment or whether the contract continued to the date which had been given for the expiry of the notice by the employer.The Court therefore had to consider whether or not that earlier slip of paper had in fact terminated the contract. That was material because it was clearly in the minds of the Court of Appeal that had that been so that would have been the effective date of termination. They decided that it was not so, but the effect of that Decision is, as we accept from the submissions of Mr Fodder, that the issue that we had to decide was clearly in the minds of the Court and highly material to the decision which had to be reached on that occasion. Therefore, we hope not too shortly, we give those reasons for deciding that the Industrial Tribunal were in our judgment correct in deciding that the effective date of termination in this case was as submitted by the Respondents, namely the 21st September 1990.Having so decided, it was then a question of whether the Originating Application was in time; prima facie it was out of time, because it did not arrive at the Central Office of the Industrial Tribunals until 3rd January and this Industrial Tribunal was considering the provisions of Section 67, subsection (2). So far, they, and we, have considered the first half of that subsection, but the remaining part of that subsection reads thus:
"or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months"
That is a strange wording as comment has been made many times including in the Court of Appeal, and the approach in practice, is for tribunals and this Court to decide whether it was not reasonably practicable for the complaint to be presented within time and if it was not, to consider an extension. So the first question is whether it was not reasonably practicable for the complaint to be presented in time.There are many cases, and this is one of them, where this involves the consideration of the post and the Post Office practice and whether or not documents can be reasonably expected to be delivered through the post.The evidence before the Industrial Tribunal is contained in paragraph 4 of it's Decision. It says this:
"We heard evidence from Mr S J King, a Regional Organiser for the GMB and his secretary, Mrs M L Beard, who maintained that the application was posted to the Central Office on 4 December notwithstanding that it arrived on 3 January."
That is what they said. We note the words "we heard evidence" and "who maintained" because of course the issue was, if it was posted on 4 December, could it reasonably have been considered that it would have reached the Tribunal by the 20th December, some 16 days later.The Industrial Tribunal make no finding of fact whether or not that letter was posted on 4th December; we heard argument that paragraph 4 clearly is a finding of fact, if so it is strangely drafted; "we heard evidence"; "somebody who maintained that" it does not indicate acceptance. It may be that the Industrial Tribunal disbelieved those witnesses, there was no other evidence about it; if they were going to disbelieve them then, in our judgment, on a very simple issue like this, they should have given sound reasons for so doing. We are perhaps being over critical but it is not clear as a finding of fact that the letter was posted on the 4th December. However, let us assume that that was the only evidence, and let us assume, bearing in mind all the advice given by the Court of Appeal about the overall approach to a Decision which only just covers one page, that the finding of fact was then made.There were some 16 days and the Tribunal then reached their conclusion that they were not satisfied that is was not reasonably practical for the complaint to be presented before them, in other words they took the view that someone posting a letter on the 4th December could not reasonably have expected it to arrive by the 20th December.We are grateful to Mr Fodder for the way he has presented this case and warned us against all the perils of reaching a conclusion that this was a Decision which no reasonable Tribunal could reach, but whatever is said about evidence, and whether there is evidence, or no evidence, there must in our judgment come a time when the experience of the world comes to this Court as well to others, and where this Court is entitled to say that in the absence of some sort of consideration; some sort of explanation; some sort of reasoning, the Decision of the Tribunal is one which is so amazing, so unreasoned that it must have been based upon some misdirection to themselves. We do so in this case.It follows therefore that we uphold the Appeal on that second issue.There is a third point however, and that is, what should be done? Mr O'Hara submits that there is no other answer than that their findings should be in his favour.We find ourselves, on the whole, unable to accept that. We think justice is best done in this case if this matter be remitted and then the evidence can be examined. It may be the same tribunal, it may be a different tribunal; this is not a case where we would feel strongly on that aspect but it should be re-heard, the matter re-examined and then the tribunal can say what it finds; why it finds; and if it finds that 16 days was not a reasonable period, well then we would like to understand it's reasoning, because at the moment we find it quite impossible to think of what that reasoning can be in the absence of some clearly drafted statement.It follows therefore, that this Appeal is allowed on the second point and it is remitted for a further hearing as directed by the Regional Chairman.