Bestwide Ltd (t/a Telford Hotel Golf & Country Club) v Butler [1993] UKEAT 572_92_2903

EAT
Bestwide Ltd (t/a Telford Hotel Golf & Country Club) v Butler
[1993] UKEAT 572_92_2903 · 1993-03-29
HIS HONOUR JUDGE PEPPITT QC This is an appeal from a decision of the Shrewsbury Industrial Tribunal made on 30th June 1992 and sent to the parties on 14th July 1992. The Tribunal decided that the Applicant (now the Respondent) had been continuously employed by the Appellants for a period of not less than two years ending with the effective date of termination and so qualified under S.64(1)(a) of the Employment Protection (Consolidation) Act 1978 to bring proceedings for unfair dismissal.The Appellants contended that in arriving at this decision the Tribunal misdirected itself in law.The facts found by the Tribunal can be stated shortly. The Respondent was employed by the Appellants as their restaurant manager at the Telford Hotel Golf and Country Club. That employment commenced on 12th March 1992. On 26th February 1992 there was a meeting between the Respondent and Mr Guest the Appellants' resident manager. The Appellants called no evidence before the Tribunal and the Respondent's account of this meeting (which the Tribunal accepted) was that "he understood his employment would terminate at the meeting because he was told to leave the premises at once, was escorted from the premises and told not to return. He was also told that any money due to him would follow together with his P.45".The Respondent subsequently received a letter from the Appellants dated 3rd March 1992. It was headed `Confirmation of Meeting of 26.2.92' and the material part read as follows:
"Adrian, as Restaurant Manager your responsibilities including Training, Liquor stock control, forward planning in al terms ie staff, expected business etc. cleanliness, wage control etc. etc. Your failure in these responsibilities as detailed above gave me no other alternative but to dismiss you from this hotel.

Your final salary due and P45 will be with you in the near future."

We have underlined the word "gave" in this letter because in the Tribnunal's decision the word `give' is used. The difference may be important.On 17th March 1992 the Appellants sent to the Respondent his final pay cheque and his P45.Against this background the Tribunal found that the Respondent continued to be employed until 24th March 1992 which was his effective date of termination. In support of its decision the Tribunal held that there was an ambiguity between what the Appellants said on 28th February and what they wrote on 3rd March and that ambiguity should be construed against the Appellants. Accordingly since there was no reference at the meeting of 28th February to a period of notice and the Appellants' letter of 3rd March referred to `final salary due', the Respondent must be deemed to have remained in the Appellants' employment until 25th March.In arriving at its decision the Tribunal relied on Adams v. GKN Sankey Ltd [1980] IRLR 416, a decision of the Employment Appeal Tribunal, the head-note of which reads as follows:
"There is a distinction between a case where an employee is dismissed with notice but is given payment in lieu of working out that notice, and a case where no notice of dismissal is given but a payment is made in lieu of notice. Where notice of termination is given, as the Court of Appeal made plain in Brindle v. H W Smith (Cabinets) Ltd [1972] IRLR 25 , the effective date of termination is the date when the notice expires and the fact that a person is not required to work during the period of notice does not mean that the employment terminated earlier than the date specified. However, if the date of termination of employment is immediate but salaries or monies are paid in respect of a subsequent period, according to Lord Denning's judgment in the Court of Appeal in Dedman v. British Building and Engineering Appliances Ltd [1973] IRLR 379, they are to be taken as compensation for immediate dismissal and not by way of continuation of the employment."
We are satisfied that this head-note accurately reflects the judgment of Mr Justice Slynn which we respectfully agree represents the law which we should apply to this case.We have come to the clear conclusion however that an application of the ratia of Adams v. Sankey Ltd (supra) to the facts of the present case drives us to the conclusion that the effective date of termination of Mr Butler's employment was 26th February 1992. He was then told to leave the premises at once, was escorted away and told not to return. Nothing was said at the meeting to suggest that his employment would continue after that date. This, indeed, was Mr Butler's understanding of the situation as he very frankly told the Tribunal.Nor do we find that there is any inconsistency between what was then said and what the Appellants wrote in their letter of 3rd March. The use in that letter of the phrase `confirmation of meeting of 26.2.92' and the past tense of the word `gave' suggests to us that this letter was merely a written confirmation of what had been said on 26th February and introduced nothing new. The use of the phrase `final salary' and its subsequent payment does not seem to us to indicate that the monies paid were otherwise than compensation for Mr Butler's immediate dismissal.For these reasons we are of the opinion that the Tribunal did indeed misdirect itself and accordingly this appeal will be allowed. We substitute for the decision of the Tribunal a finding that the Respondent was not continuously employed by the Appellants for a period of not less than two years ending with the effective date of termination.