Patel v Nagesan [1993] UKEAT 378_91_1203

EMPOLYMENT APPEAL TRIBUNAL
BAILII case number: [1993] UKEAT 378_91_1203Case No Appeal No. EAT/378/91Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
PatelNagesan
Date 12 March 1993
HIS HONOUR JUDGE HARGROVE QC The Respondent worked at Ashby Rest Home from 4th September 1981. From that date until August 1987 the Home was run by SRN Homes Group Ltd. Thereafter the Appellant and a Mr Singh purchased the Home. From February 1988 the Appellant became the sole owner but seems to have regarded his son, Atul Patel, as a manager/partner in the Home.On 18th July 1990 the Appellant gave the Respondent ten weeks' notice of a new contract of employment. The evidence accepted by the Industrial Tribunal was that prior to that date there had been no specific date for retirement but the new contract sought to impose the term of retirement at 60. This the Respondent refused to accept. On 11th October 1990 she was given 10 weeks' notice purporting to be notice of termination by reason of retirement. On 19th November 1990 the Appellant applied to the Industrial Tribunal alleging unfair dismissal. On 20th November a letter was sent by the Appellant company complaining of the Respondent's behaviour and on 27th November 1990 it is alleged that a letter was sent to her stating that she had been summarily dismissed as from 20th November 1990. The Respondent alleges that she did not receive that letter.On 17th June 1991 reasons were given for the Tribunal's decision on 9th April 1991 holding that the dismissal was unfair and that the Industrial Tribunal had jurisdiction.The Appellant raises on this appeal two points which were put forward before the Industrial Tribunal:That because, during the period of notice, there was summary dismissal, the date when the period of 3 months expired was 27th February 1991. By reason of the summary dismissal a further application should have been made and since it was not made there is no jurisdiction in the Industrial Tribunal to hear these proceedings. It is claimed that the Tribunal misinterpreted S.67(4) of the Employment Protection (Consolidation) Act 1978.That the normal retiring age for the post was 60 and that the finding that there was no retirement age at 60 was perverse.The Appellant's case is that, without statutory intervention, the three month period only applies from the date of dismissal. The provision of S.67(2) which imposes the three month period limiting jurisdiction is only abrogated by S.67(4) if there is a case at the time of the hearing where there has been dismissal with notice. In that case S.67(4) permits an application to be made during the period of notice. It is said that here there had been a summary dismissal and the Respondent ought to have issued a further application to the Tribunal in support of the strict wording of S.67(4), the case of Throsby v. Imperial College of Science and Technology [1978] ICR 357 at 367 was cited.In that case the applicant was a lecturer who also held an appointment as a warden of a hall of residence. That appointment was for a fixed term until 30th September 1977. The applicant was informed that the fixed term would not be extended. Without waiting for the period of the contract to elapse he made application to the Tribunal seeking compensation for the prospective termination of employment. This Court held that since there was no dismissal with notice the applicant's proceedings were premature and that he was obliged to wait until after the expiry of the fixed term before such proceedings were brought. It was further urged before us on behalf of the appellant that although there was jurisdiction when the application was originally made, that jurisdiction was terminated by the summary dismissal. The loss of the right to be heard at that stage was said not to be unjust to the respondent because that right might have disappeared in any event because of her death or because of reinstatement. In any event the respondent would not be without remedies against her advisers since the time for making an application in respect of the summary dismissal had now elapsed and prima facie her application would be time barred. The Tribunal's approach was set out in paragraph 29 of the Reasons:
"On that evidence we find unanimously that the main reason for this dismissal was the Respondents' determination to get rid of the Applicant because she was clearly regarded as a nuisance in her resistance to the attempts to impose new conditions of employment upon her without her consent. We find that there was no retirement age of 60 in the Applicant's case. We therefore reject the contention that that amounts to dismissal for some other substantial reason. We further find on the evidence that there was no gross misconduct on the part of the Applicant in this case. The allegations which were spread together and made against her were on the evidence before us, unsubstantiated and were only put forward in an effort to try to justify summary dismissal on 20 November 1990."
The Respondent replies that there is no finding that the letter of 27th November 1990 which purported to terminate the Respondent's employment was a summary dismissal at all. Secondly they said that under Industrial Tribunals (Rules of Procedure) Regulations 1985 (S.I.1985 No.16) Schedule 1, Rule 12(1) a Tribunal may if it thinks fit extend time for doing any act notwithstanding the time appointed under the Rules may have expired. Attractive though this argument at first appeared, there seems nothing in the findings of the Tribunal which give any substance to it.There seems to be no decided case to assist us upon this issue. From the passage quoted above and the whole tenor of the Tribunal's findings that the excuses given for both the dismissal with notice and the summary dismissal were held to be bogus. While different considerations may apply where there is a genuine need for a summary dismissal, we do not consider that the Appellant can, by inventing reasons for a summary dismissal, thereby invalidate the application which has already been made. To do so would put a premium upon dishonest devices which would throw an additional burden upon an employee who has already made a valid application to the Tribunal. Further, there seems to be no provision in the Act for second complaints in respect of unfair dismissal relating to the same employer and the same employment. Section 67 speaks only of "a complaint". In the ordinary approach to construing a statute the distinction between a singular and plural term would be of no importance. However, it has to be borne in mind that the Act confers only specific and limited powers upon the employee and had the Legislature intended that there should be a right to make more than one application then one would have expected clear wording to that effect. We consider that a narrow interpretation would be necessary. In those circumstances once the application was made in proper form by the respondent at a time when the Tribunal had jurisdiction we do not consider that the attempted summary dismissal on bogus grounds would impose upon the Respondent the necessity of making a further application.Finally on this aspect we accept the contention that there is no finding of summary dismissal on 27th November and accordingly the period of notice did not come to an end and S.67(4) was correctly applied by the Tribunal.As indicated above the Tribunal found that there was no retirement age at 60 in the Applicant's case. The objections to that finding were two-fold. First, the letter of 21st July 1990 from SRN Homes was adduced in evidence. It seems that discussions were taking place between the Respondent and the Appellant in relation to the age of retirement. The Respondent applied to SRN Homes to find out whether the contract which was placed before the Tribunal (and which had been taken over by the Appellants) did or did not contain a retirement age. The letter from SRN Homes indicated that there was no specific retirement age in the contract of employment and that a retirement date was considered on a case by case basis. Mr Atul Patel on behalf of the Appellant said in evidence before the Tribunal that staff could continue after 60 by mutual agreement. The objection to the letter was that consideration of a contract of employment statement was a matter of law and that the opinions of those, such as the previous employer or indeed the Respondent herself were of no importance and irrelevant to the issue. It seems that the letter was written to the Respondent at a time when she was genuinely seeking to find out what the position was and in that respect we consider it was rightly admitted in evidence. The main thrust of the attack upon the Tribunal's finding in this respect is that the contract of employment statement which is headed, " Particulars of Main Terms of Employment" says under the heading " Pensions" "Government Scheme" , further, under the heading " Social Security Pensions Act" there is the entry "a contracting out certificate is not in force for the employment in respect of which this statement is given". It is said that upon that basis there is an implied term that retirement would be at the age of 60. We bear in mind that this is the employer's document. It is plainly defective in that it mis-describes the job title of Respondent as "Acting person in charge". She had in fact reached the stage of being person in charge, and that in any event it was necessary to look outside the document since it purported to do no more than to give the main terms of employment.It seems that after some initial resistance the remaining members of staff agreed to the terms which the employers were in this case seeking to enforce upon them by variation of the existing contract. It is clear that Mrs Nagesan refused to consent to the variation thus the contractual terms of her employment remained as before and in our view the Tribunal were right to find that there was no specific term for retirement in the contract and attempts to equate pension provisions with retirement provisions do violence to the plain words used in the terms of employment. Section 64 of the Employment Protection (Consolidation) Act 1978 says, omitting immaterial matters:
"Subject to subsection (3) section 54 does not apply to the dismissal of an employee from any employment if the employee (b) attain the following age on or before the effective date of termination, that is to say (i)if in the undertaking in which he was employed there was a normal retirement age for an employee holding the position which he held and the age was the same whether the employee holding that position was a man or woman that normal retiring age and
(ii)in any other case the age of 65" .The contention on behalf of the Appellant was that because all the other employees had been persuaded to accept 60 as their retiring age for the future, that became the "normal" age for retirement and the Respondent's case therefore failed. We accept the contention of the Respondent that, as the 'Person in Charge' with responsibilities which statute impose upon an individual holding that office, she was in a unique position. We consider that there was ample evidence upon which the Tribunal could find that there was no retirement age specified and that accordingly the statutory retirement age of 65 now applies, there being no other "normal" retirement age. It is noteworthy that at least one other employee had been employed when already over the age of 60.Accordingly we are unanimous of the view that on both limbs this appeal fails.