Beevor v Haberdashers Aske's School For Girls [1994] UKEAT 19_92_2101

EAT
Beevor v Haberdashers Aske's School For Girls
[1994] UKEAT 19_92_2101 · 1994-01-21

JUDGE D M LEVY QC:

This is an appeal by Mrs Beevor against a decision of the Industrial Tribunal held at London (South) on the 27th February 1991 where the Tribunal held unanimously that the Applicant, Mrs Beevor, had failed to prove that it would be just and equitable to extend time under Section 76(5) of the Sex Discrimination Act 1975 for her to bring proceedings against former employees, the Haberdashers Aske's School for Girls, Elstree, Hertfordshire ("the School"). It is necessary for that decision to be seen in the context of the Appellant's dealings with the School and in that connection it is helpful to look at the useful chronology which has been prepared for us by Mr Soole who appears for the School.I should say at the start that Mrs Beevor has been represented by her Father, Mr Roper, in the hearing before us today and he has put forward the arguments which he wishes to deploy at some length and with moderation throughout.The chronology begins on the 1st September 1988 when the Appellant's employment at the School began. Clause 10 of her contract of employment reads:
"A notice by either party to terminate this Contract shall be given in writing to the other party not less than two calendar months before the last working day of the School term and such notice shall expire if given in the Autumn Term on the 31st December if given in the Spring Term on 30th April if given in the Summer Term on 31st August in any year. . ."
and then there is a proviso with which we are not concerned.The parties to the contract were the employer, namely the Board of Governors of the Haberdasher Aske's School for Girls c/o the Head Mistress of the School, Aldenham Road, Elstree, Hertfordshire and the Appellant. I just set out that Clause for later consideration. On 7th October 1988 that contract was signed. On the 29th January 1990 there was a letter of dismissal from which it is necessary for me to read a part:

" From the Head Mistress

BY RECORDED DELIVERY

. . . . .Having fully considered the position, I have come to the conclusion that for the sake of all parties concerned, this situation cannot continue any longer. Accordingly, I now feel that I have no alternative but to terminate your contract of employment in accordance with Clause 10 of that contract. Therefore, you should treat this letter as notice that your contract of employment will terminate on 30 April 1990. This notice is effective in accordance with Clause 14 of your contract of Employment on the first day after posting, namely from 30 January 1990."The letter was signed by the Head Mistress.The major point taken on this appeal is that the Head Mistress had no right to sign it because of a clause within her contract of employment, to which I will return. It also argued that the letter is not a letter within Clause 10 of the contract. Subject to the Head Mistress' authority point, we have no doubt whatsoever that it was a proper letter to terminate the contract to which we have referred.On 6th March, by which time Mrs Beevor had instructed them to represent her, the School wrote to Messrs Theodore Goddard and Company informing them of the Governors' decision to approve a representative to hear a complaint against dismissal which Mrs Beevor had made.On the 14 March 1990 a further letter was sent to Theodore Goddard to the effect that Mrs Bostock had been appointed to hear Mrs Beevor's complaint and there was to be a hearing on 23rd March.On the 23rd March 1990 a meeting between Mrs Bostock and the Appellant. In the course of this appeal we have heard some complaint about the fact that a representative of the firm of solicitors whom the School had appointed wanted to attend the meeting, we think nothing whatsoever turns on that point. Obviously a full note had to be taken in the meeting and, in the event, as we have seen from the correspondence which we have read, a representative of Theodore Goddard also attended the meeting to ensure that there was fair play then, and indeed that representative made sure that the minutes of the meeting were to Theodore Goddard's satisfaction.As a matter of chronology on the 30th April (according to the letter of the 29th January) the termination of employment took effect.On the 18th May 1990 the Governors wrote a letter confirming the decision to dismiss.On the 24th July 1990 the Originating Application was made to an Industrial Tribunal alleging unfair dismissal and lack of written reasons.On the 6th August 1990 there was a Notice of Appearance.On the 22nd August the Industrial Tribunal informed the Appellant's Father that there was an intention to "strike out" the application of unfair dismissal.There was a letter to him on the 29th August 1990 setting out his reasons why that should not take place.As a matter of chronology the next date of importance is the 31st August 1990. This is the date which the Appellant says was a date of termination of the contract because, her argument runs, the date of termination is effective from the Governor's letter of the 18th May.On the 5th September 1990 there was an Interlocutory Order by the Industrial Tribunal striking out the unfair dismissal claim.On the 3rd November 1990 the Industrial Tribunal made an award as to liability conceded by the Respondents in the sum £602.76.The notice of the Decision was sent to the parties on 29th November 1990.On the 13th December 1990, a letter of the Industrial Tribunal to Mr Roper, stating the need for a fresh application for a Sexual Discrimination claim.On the 17th December 1990 that application was duly made the number being 35665/90/A.That the Notice of Originating Application was received on 4th January 1991 by the Respondents.The Industrial Tribunal gave notification to the parties of a preliminary hearing. That hearing took place on the 27th February 1991 when an extension of time was refused. The decision of the Tribunal was sent to the parties.On the 28th March 1991 there was a letter from the Father of the Appellant to the Industrial Tribunal requesting review of the decision not to extend time.That was refused on the 17th April 1991.On the 24th April 1991 Notice of appeal against decision not to extend time was given.Then, on the 11th December 1992, there was a preliminary hearing before His Honour Judge J Hicks QC and colleagues when they gave leave for there to be a full hearing on limited grounds to be contained in an amended Notice of Appeal, to be filed within 14 days. The Tribunal also directed that the Chairman be asked to provide his Notes of Evidence.The amended Notice of Appeal was filed on the 19th December 1992 and on the 5th April it was served on the Respondents, who gave their amended answer on the 19th April 1993.From that chronology, the battle between the parties does not really appear, because what is said is that the preliminary hearing before the Industrial Tribunal on 27th February 1991, the Chairman and his colleagues stopped Mr Roper making the submissions which he wanted to make. In summary those submissions ran on two fronts. The first was on the date on which the dismissal of his daughter took place. The second was whether the application based on sexual discrimination had any merits.It is apparent from reading the Chairman's Notes that on the 27th February the Tribunal was anxious to do was to see if, so far as they were concerned, there was any scope in the complaint which the Appellant wanted to make about sexual discrimination and really at the forefront of their mind was not the question which has been before us this morning as to the date of the actual dismissal. The Tribunal were of the opinion that there was nothing in the application which the Appellant wanted to make and they refused it. But they went into it in quite some detail, as the Chairman's Notes of Evidence show.What the appeal is about today is whether the extension of time should have been allowed. It said that if all that Mr Roper had said to us today, some of it being matters which he only recently heard about, but we will put that on one side, if all the matters which he had heard about today had been before the Tribunal there would have been a different answer and in any event it is a matter which should go back to the Tribunal for further discussion. The significance of the date of dismissal is this: if the later date of dismissal is correct the application for sex discrimination relief may not have been out of time.We turn therefore to consider whether there is anything in the argument that the date of dismissal is other than that which alleged by the School, the Respondents to this appeal, namely the letter of the 29th January 1990.The high point of Mr Roper's argument is that production of the contract of employment of the Headmistress, shows that she was not entitled to dismiss staff contractually, save in these terms (Clause 8 of her contract):"THE power of appointing and dismissing Assistant Masters or Mistresses in the School shall be exercised by the Headmistress after obtaining in every case the approval of the School Governors and subject . . ." [the remaining words do not matter.]It is common ground that in this particular case the approval of the School Governors was not obtained in advance of the dismissal letter.We consider the terms of the amended answer and it is right to say that although we have not asked Mr Soole to address us on behalf of the School, we did invite from Mr Roper his comments and his submissions on the amended answer so that he should have had the opportunity to answer them.The amended answer is found at page 26 of the bundle and in the terms on page 2 there is a claim that is was res judicata and:
"(2) Further or alternatively it is an abuse of process for the applicant to seek to relitigate that issue.
(3) Further or alternatively the applicant has previously represented to the respondents and to the Tribunal that the respondents terminated her employment with effect from 30th April 1990 and she is estopped from contending otherwise or it is otherwise an abuse of process to attempt to do so. The respondent in particular relies on . . ."certain documents, namely, the letter of 23rd February 1990 from her solicitors, Theodore Goddard, in which those well known solicitors said:
"Therefore Mrs Beevor was most distressed to receive your letter of 29th January terminating her contract with effect from 30th April 1990."
On Mrs Beevor's behalf, her solicitors appear to accept the letter to which they refer as an effective one to terminate her contract. Secondly:
"(b) the applicant's participation in the hearing before Mrs Bostock, . . . The hearing proceeded on the basis, set out in the headmistress' letter (on behalf of the Governors) of 6th March 1990, that `The notice of termination of employment delivered to Mrs Beevor on 29th January 1990 remains in force.' (c) the terms of her Originating Application . . . which stated the date on which her employment ended on 31 April 1990. (d) the letter dated 29th August 1990 from the applicant's father Mr N Roper, written in reply to the Industrial Tribunal's letter dated 22nd August 1990. This was headed `Re: Mrs K M Beevor v. Board of Governors of the Haberdashers' Aske's School for Girls' and referred to `her dismissal notice, dated 29th January 1990'. (e) the applicant's evidence to the Tribunal on the 27th February 1991 that `I became employed by the respondents as a teacher on 1 September 1988 and it came to an end of 30 April 1990.' (Chairman's Notes of Evidence)."
As an alternative ground there is waiver pleaded, having regard to the matter set out in the final paragraph and it is also pleaded in subparagraph (5) of this clause of the amended answer:(5) The letter from the Chairman of the Board of Governors to the applicant dated 18th May 1990 did not constitute a letter of dismissal. It communicated the Governors decision, following the hearing before Mrs Bostock on 23rd March 1990, to confirm and/or ratify the decision to dismiss contained in the letter of 29th January 1990. Accordingly the applicant's employment terminated on the date (30th April 1990) set out in the letter of 29th January 1990."There are other matters in the amended answer which I need not dwell upon.At the end of the day the question is a simple one - was the contract terminated by that letter? - was the fact that the Headmistress did not get the formal consent of the Governors to write the letter, does that vitiate the letter being sent?We are satisfied, having heard Mr Roper and considered all his submissions, that despite the complaint which has been made with some force that the Headmistress was not entitled to write the letter, this is something about which it is not open to the Appellant, who was not a party to the contract between the Headmistress and the School, to complain. Further in the alternative if it was something about which he could complain, it is something which has been put right by the ratification of the letter and we are satisfied that the ratification dates back to the time of the letter. We are also satisfied beyond peradventure that if all the matters which I have referred to in this judgment had been before the Tribunal on the 27th February 1991 they would have come to the same decision as they reached. We are satisfied that the whole conduct of the Appellant has been to waive such irregularity, if there was any because of the Headmistress' slip in sending out the letter of 29th January 1990 without the consultation of the Governors which her contract required. We do appreciate that it was not until a late stage that this mistake came to the Appellant's notice, but we do not think that this makes any difference to the position at the end of the day.We also remind ourselves of the very limited powers that we have on appeal from an Industrial Tribunal; we can only interfere if something clearly went wrong below, or if the finding was perverse. I put that in very short form but we are satisfied that on the matter on which we have heard argument this morning there is nothing to be said on either ground which encourages us in any way to allow this appeal.In the circumstances, while thanking Mr Roper for his long and careful submissions we have no alternative other than to dismiss this appeal.