Naidu v West Lambeth Health Authority [1992] UKEAT 17_92_2102

EAT
Naidu v West Lambeth Health Authority
[1992] UKEAT 17_92_2102 · 1992-02-21
MR JUSTICE PILL : This is an Appeal by Mrs T Naidu against the decision of the Industrial Tribunal sitting at London South, Mr Bano presiding, in February and May 1991.The unanimous decision of the Tribunal was that it did not have jurisdiction to consider the application. The Appeal has been listed for preliminary hearing and we have heard Mr Chapman of Counsel on the Appellant's behalf. The Respondents have not appeared.The Tribunal first gave their reasons in summary form and then upon request, Full Reasons were supplied on 16 May 1991. The Appellant is an experienced State Registered Nurse and the background of her employment is set out in the Full Reasons. She commenced her employment with the Respondents, the West Lambeth Health Authority, on 1 June 1988. The employers claimed, and the Tribunal found, that the Applicant was dismissed summarily on 30 May 1990 and also that the employers were entitled to dismiss summarily on that date.It is common ground that upon those findings the Tribunal indeed had no jurisdiction to hear the application.We have a written Notice of Appeal. Counsel has addressed us upon points not included in the Notice and we have heard his submissions de bene esse and in anticipation that if we see merit in them we will then consider an application for leave to amend the Notice.Mr Chapman submits that the Tribunal were not entitled to find upon the evidence that there had been a summary dismissal on 30 May 1990. He submits that the only proper finding on the evidence was that the dismissal was on 7 June. If it was on that date then the Tribunal would have had jurisdiction to hear the Application. He further submits that even if the Applicants purported to dismiss on 30 May 1990, the Tribunal were not entitled to find on the evidence that there could be a summary dismissal. They could not find that there had been such conduct by the Applicant as would have entitled the employers to dismiss without notice.The Full Reasons set out in considerable detail the background to the relevant events in May and June 1990. We need not consider the earlier history in detail. At paragraph 40 the Tribunal held that the Applicant had been dismissed for matters which took place after the Applicant's suspension which was at an earlier date.A disciplinary hearing took place on 24 May 1990. The Applicant had indicated that she wanted promotion to sister. There was a discussion of differences and the Applicant was told that if she was able to accept conditions which were specified to her she would be able to return to work and no further action would be taken against her.A letter was written to the Applicant on that date setting out conditions and concluding with this paragraph:
"I require you to return to work under the above conditions and if you do so I will take no formal disciplinary action. However if you do not abide by this decision I will find myself with no alternative but to terminate your contract of employment for failure to carry out your contractual obligations."
The letter was signed by the Director of Elderly Services in the Health Authority.The Tribunal heard evidence as to whether or not the applicant was entitled to reject the conditions put forward. The Tribunal stated that on questions of credibility they preferred the evidence given on the Health Authority's behalf. That is stated both in the short summary reasons and at paragraph 34 of the Full Reasons.A further meeting took place on 30 May. The letter to which we have referred was read out. The Tribunal found the Applicant was told that she was required to return to work and that it was not disputed, and neither is it disputed here, that the Applicant refused to return to work on the conditions set out in the letter. The remainder of paragraph 28 of the Full Reasons reads as follows:
"..the applicant's employment was then terminated instantly. There followed a discussion about payment of the applicant's salary for May, and the applicant said she was told that one day's salary was being deducted."
A letter was written to the Applicant on 6 June, again signed by the Director of Elderly Services. It commenced by stating:

"I write to confirm the outcome of our meeting on May 30th 1990"

Paragraph 3 of the letter states:
"You stated that you would not return to work under the terms of your employment, which I had clarified in my letter. I consider this refusal to return to work to be a fundamental breach of your contractual obligations and I therefore decided to terminate your contract, without notice, with effect from 30 May 1990."
Mr Chapman submits that the dismissal was in that letter and not at the meeting of 30 May. He further submits that any action on 30 May was by the Applicant alone, that the most that could be said was that there had been what is described as a "self dismissal" and it is established in law that there is no dismissal unless and until the employer accepts the repudiatory conduct, or dismisses upon the basis of conduct which he is entitled to treat as repudiatory. For present purposes we accept Mr Chapman's view of the law on that point. However, it still has to be considered whether upon the evidence as a whole, the Tribunal were entitled to find, and did find, that there was a dismissal by the employers in terms at the meeting of 30 May.Mr Chapman submits that the use of the present tense "I consider" in the letter of 6 June means that the dismissal was not until that date. However, in the same paragraph the statement appears, which appears to us to be a plain one:
"I therefore decided to terminate your contract, without notice, with effect from 30th May 1990."
There is no doubt that the Health Authority's case before the Tribunal was that the Applicant's refusal to return to work on the terms set out in the letter of 24 May constituted a fundamental breach of the Applicant's terms of employment which entitled the Respondent to terminate that contract without notice. That appears from paragraph 32 of the Full Reasons.We have unanimously come to the conclusion that the employers did dismiss on 30 May. We have referred to the letter dated 6 June. We also refer to paragraph 39 of the Full Reasons:
"We therefore hold that the respondents were entitled to accept the applicant's repudiation of her contract of employment and did so by dismissing her summarily on 30 May. Accordingly, the applicant did not have at the effective date of termination of her contract of employment the period of continuous employment necessary to bring a claim of unfair dismissal and we do not have jurisdiction to consider her complaint."
The Tribunal had come to the conclusion that there was a dismissal by the employers on 30 May. The contents of paragraph 28 where the description of the meeting is given and the contents of the other letters, in our judgment, entitled the Tribunal to come to that conclusion and it is not reasonably arguable otherwise.There remains the question whether the Tribunal were entitled to hold that the employers could dismiss summarily on that date. Mr Chapman submits that there was no evidence to support the finding that the employee's conduct was such that the dismissal on that date could be summary. We cannot accept that submission. We have considered the evidence set out in the Full Reasons and the Tribunal's conclusion at paragraph 36:
"We find that the conditions set out in the respondents' letter of 24 May were conditions of the applicant's contract of employment, and we hold that the applicant was not entitled to refuse to return to work on those conditions."
The Tribunal then set out in some detail each of the conditions set out in the letter.We have no doubt that there was evidence upon which the Tribunal were entitled to come to the conclusion that they did. They concluded, having heard the evidence, that the various requirements set out were terms of the Applicant's contract of employment. There is consideration for example in paragraph 35 of one of the terms involved.The Tribunal went on to say that if they had held that they had jurisdiction to consider the complaint they would have found that the Applicant had been fairly dismissed. It is not for us, at any rate at this stage, to go on to consider that question but the contents of paragraph 40, where that point is made by the Tribunal, also support the view that they were entitled to reach the conclusion they did. They referred to the intransigent attitude shown by the Applicant and the importance of the terms which the Applicant declined to accept.In those circumstances we do not consider it appropriate to allow this Appeal to go to a full hearing. We are grateful to Mr Chapman for his submissions but this Appeal must be dismissed. We have approached the matter on the basis that we would have granted leave to make the amendments to the Notice of Appeal which Mr Chapman mentioned to us.