Sinclair v J Sainsburys Plc [1993] UKEAT 250_93_1806

EAT
Sinclair v J Sainsburys Plc
[1993] UKEAT 250_93_1806 · 1993-06-18

JUDGE N HAGUE QC:

This is an appeal brought by an employee, Mr Sinclair, against a decision of an Industrial Tribunal sitting at Brighton entered on the Register on the 8th February 1993 on a preliminary issue. That preliminary issue arose in the course of his claim for unfair dismissal made against his employers J Sainsburys plc. The preliminary issue was concerned with the question as to whether Mr Sinclair had made his complaint within the three month period specified in Section 67(2) of the Employment Protection (Consolidation) Act 1978 .The material facts are as follows. Mr Sinclair was employed by Sainsburys and had been so employed for over twenty years. On the 28th March 1991 an incident occurred at Sainsburys Eastbourne Store where he was employed. It was alleged that he had deliberately taken an item of stock for his personal use without paying for it beforehand. That accusation had serious consequences, because Mr Sinclair made a serious attempt to kill himself, using a car exhaust, and was admitted as a voluntary patient to hospital. He was discharged after some time but has subsequently been receiving out patients psychiatric treatment. It was for those reasons that a long time elapsed before a disciplinary hearing was convened to deal with this incident. It was accepted that for this purpose, or at any rate for the purposes of the disciplinary hearing and for some time previously, Mr Sinclair had been acting through a firm of solicitors, Messrs Fitzgrahams. Eventually, the disciplinary hearing was fixed for the 10th June 1992. But there was evidence from a Consultant Psychiatrist that in view of Mr Sinclair's psychiatric condition he would not be able to attend any disciplinary hearing, and if he had to attend it would be extremely damaging and harmful to his mental health. In those circumstances, most unusually, the disciplinary hearing was held in his absence, but he was, as we have said, represented by Mr M Duke of Fitzgrahams, who (we are told) gave evidence at the hearing before the Tribunal. At the conclusion of the disciplinary hearing a decision was not announced immediately. But by a letter dated the same day, 10th June 1992, sent to Fitzgrahams, Sainsburys told them the result of the disciplinary hearing. Paragraph 2 of that letter says this:
"It was the decision of the Area Director, Mr Etheridge, and myself, that Mr Sinclair should be summarily dismissed for gross misconduct in that he was found in circumstances that led us to believe that he deliberately took an item of stock for his personal use without prior payment, contrary to our staff shopping procedures."
The letter points out that Mr Sinclair would have a right of appeal to a Retail Director and then concludes in these words:
"In view of Mr Sinclair's incapacity, we have not written to him direct, and trust that you will make him aware of the contents of this letter."
So Sainsburys did not write direct to Mr Sinclair, and it is right, to say that they had been expressly requested by Fitzgrahams on previous occasions not to communicate with Mr Sinclair direct because of his mental condition. That letter to Messrs Fitzgrahams was received by Fitzgrahams on the 12th June 1992. On the 17th June they wrote back to Sainsburys a fairly strong letter protesting about the decision but, amongst other things, asking them to accept the letter as notice of the intention to appeal, that is under the internal appeal procedure. That letter also indicates that Mr Sinclair was then in hospital. It was probably for that reason that the Fitzgrahams did not communicate to Mr Sinclair the fact that the disciplinary hearing had resulted in his dismissal until a letter dated the 19th June 1992 when they wrote to him at his home. A few days later, on the 25th June 1992, they had a meeting with him at their office. The dates are important. The Sainsburys' letter was received by Fitzgrahams on the 12th June. Mr Sinclair himself only got to know of the decision at the earliest, on the 20th June, at any rate some time between the 19th and the 25th June. The importance arises because Mr Sinclair's application to the Tribunal was received at the Central Office of Industrial Tribunals on the 16th September. It follows that if the effective date of termination of Mr Sinclair's employment was on, or even before, the 12th June 1992, his application was out of time. If, on the other hand, the effective date of termination was when he himself was informed of the termination, it was inside the three month period.As a general rule, it is clear that for something as important as a notice of dismissal it is essential that the notice reaches, and is seen by, the employee or at any rate that he has a proper opportunity of seeing it. That was the basis of the decision of this Appeal Tribunal in Brown v. Southall & Knight [1980] ICR 617, the facts which were that the employee had gone on holiday (so the Industrial Tribunal found) at the time when the letter of dismissal arrived at his home and he did not actually see it until he had returned from his holiday. This Appeal Tribunal held that the effective date of termination was when he actually did receive the notice on his return from holiday, and not before. However, that was a straightforward case of an employer communicating directly with an employee, which of course is the case in the vast majority of dismissals. In particular, it is the case in the vast majority of dismissals after disciplinary hearings because it is only very rarely that the employee does not himself appear at the disciplinary hearing.The question that arises is whether the effective date of termination was the date when Fitzgrahams received the letter, the 12th June, and that in turn, subject to one point to which we will refer to in a moment, as we see it depends upon whether they had authority from Mr Sinclair so to do.The Tribunal, made this finding in paragraph 8 of their decision, which we set out in full:
"The Tribunal finds that there were in this case exceptional circumstances in that the Applicant on medical advice did not attend the Disciplinary Hearing but he was represented at the Hearing by his Solicitors. No decision was announced at the Hearing but a letter 10th June 1992 was sent to the Solicitors and was received by them on 12th June 1992. The Tribunal finds that the Applicant's Solicitors were clearly his authorised Agents attending at the Disciplinary Hearing and we find that the contract of employment was terminated when his Solicitors received the Respondent's letter of 12th June 1992 and the termination of the contract of employment was not postponed because the Solicitors did not inform the Applicant of the outcome of the Disciplinary Hearing until one week later. The Tribunal therefore finds that the contract of employment was terminated on 12th June 1992, and we find that the Application was not presented within three months of that date. We further find that it was reasonably practicable for the Application to have been presented within that period and we therefore dismiss this Application."
Dealing for one moment, in parenthesis, with the final sentence of that paragraph, Mr Hall-Smith did not suggest either before the Tribunal or before us that it was not reasonably practical for Mr Sinclair's application to have been presented before the end of the three month period within the final words of Section 67(2), and we consider he was clearly right in not taking that point which would have been quite futile.What Mr Hall-Smith says, basing himself on Brown v. Southall & Knight , is that it is essential that the employee himself receives the notice of dismissal. As a general rule that must be right, but we cannot think that it is an absolute rule and that there can never be circumstances in which an agent could accept or receive a notice of dismissal on his behalf. One can easily envisage circumstances where that would be an absurd conclusion. Mr Hall-Smith further says that, accepting that the Solicitors were his agents for attending at the disciplinary hearing, it does not follow and cannot be inferred that they had instructions and authority to accept any notice of dismissal which in the circumstances of the present case might be the result of the disciplinary hearing. Well, that it is an ingenious point but it lacks reality and we really cannot think that it is of any substance. If the Tribunal had announced its decision immediately after the conclusion of the disciplinary hearing, it cannot be doubted that the Solicitors would have been his agents to receive that announcement. In our view, it can make no difference that the decision is communicated by a letter to the same persons who were attending at the disciplinary hearing. In our view, particularly given the background of the whole case in which, as we have said, the Solicitors had been acting for some time beforehand, we think it is really quite clear that they did have the authority which necessarily flowed from their instructions to attend the disciplinary hearing to receive and accept the result of it on Mr Sinclair's behalf. Furthermore it may well be, though we express no concluded view on this, that the reasoning of the Tribunal necessarily involves an implicit finding that they did have that authority which, if that be so, would be a conclusion of fact clearly open on the evidence to the Tribunal and one with which could not interfere.Mr Hall-Smith had another point. He said this, even if it is assumed that the Solicitors did have authority to receive the decision of the Tribunal, nevertheless, the effective date of termination would not be until they had communicated that decision to Mr Sinclair or, at any rate, a reasonable time had elapsed in which they could have done so. This is, again, an ingenious suggestion, but it seems to us to be quite contrary not only to common sense, but also to the well-established practice in other spheres such as for instance, the receipt by an agent of a notice to quit or the like. For practical purposes the agent is really the alter ego of the principal, in this case the employee, and the receipt of a notice by such alter ego comes to the same thing as the actual receipt by the employee. In our judgment that point is of no substance.For those reasons we consider that the decision of the Tribunal in this case was clearly correct and we dismiss the appeal.