Corby Borough Council v Barratt [1994] UKEAT 306_94_1107

EAT
Corby Borough Council v Barratt
[1994] UKEAT 306_94_1107 · 1994-07-11
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by the Corby Borough Council against a decision of the Industrial Tribunal held at Leicester on the 6th January 1994. For reasons notified to the parties on the 25th February 1994 the Tribunal decided unanimously that the application for unfair dismissal brought by Mr Barratt against the Council was brought in time and that the Tribunal therefore had jurisdiction to hear his case.The Tribunal's decision was not to the liking of the Council who appealed by Notice of Appeal received in this Tribunal on the 17th March 1994. The only question which arises on this appeal is whether the Industrial Tribunal erred in law in deciding that the effective date of termination of Mr Barratt's employment with the Council was the 22nd June 1993. If that was the correct date the Originating Application presented to the Tribunal by Mr Barratt on the 7th September 1993 was in time. If the 22nd June 1993 is not the correct date it is common ground that the alternative date, for the effective date of termination will be the 18th May 1993. On that basis the application was presented out of time.This Tribunal is not concerned with the question, which would arise if the application was made out of time, whether or not it was reasonably practicable to bring it within the three months statutory period. The reason why this Tribunal is not concerned with that issue is that, in view of their decision, the Industrial Tribunal did not think it necessary to consider the reasonable practicability test. There is therefore no decision on that matter which can be the subject to an appeal to this Tribunal today. It is common ground that, if this appeal is allowed, then the matter will have to be remitted to a different Industrial Tribunal to rule on the reasonable practicability test.In order to understand and decide the issue which I have identified it is necessary to look at the background facts which led to the dispute and to these proceedings. The Originating Application was presented on the 7th September 1993. According to the application Mr Barratt's complaint against his employer Council was that he had been unfairly constructively dismissed. He stated that he was employed as an HGV Driver, that was in the Highways Maintenance Section of the Council, that he had been employed since May 1988, and that employment had ended on the 18th May 1993.The details of his complaint stated that he had been repeatedly abused. He complained to a supervisor about the behaviour of his fellow workers. No action was taken. Eventually he sought help to cope with the pressure. He received psychiatric treatment and medication, which was helpful to him, but did not prevent him from suffering a nervous breakdown. He felt he could not return to work and he therefore claimed unfair/constructive dismissal.The Notice of Appearance by the Council took issue with the commencement date of Mr Barratt's employment, stating that it began on the 11th July 1988, but agreed with the 18th May 1993 as the date on which his employment ended. The Council set out their response to their complaint in their Notice of Appearance. It is unnecessary to go into the details at this stage, save to say that the Council's case is that Mr Barratt was on sick leave from the 15th July 1992. His statutory sick expired at the end of January 1993. On the 5th March 1993 Communicare advised on Mr Barratt's condition and expressed the view that he was unlikely ever to return to work with the Council. On the 23rd April 1993 the Council's sick payments to Mr Barratt were discontinued. On the 16th May 1993 Mr Barratt's Doctor was no longer willing to sign off Mr Barratt as sick from that date.The Council say that they were unable to find any suitable vacancy for Mr Barratt. The Deputy Personnel Officer visited his home on the 25th May 1993 and it was explained to Mr Barratt that the Council would probably have to dismiss him on the grounds of ill health, but no precipitous action would be taken.On the 22nd June an undated letter from Mr Barratt was received by the Council stating that he resigned with effect from the 18th May 1993. The letter was written in these terms:
"I wish to resign my job as a HGV driver roadworker with Corby Borough Council.
As you will appreciate I have been off sick a long time and I don't feel able to return to work, because of the incident of abuse levelled at me during my term of employment, which led to my subsequent nervous breakdown.I therefore feel that your failure to act on my complaints, leave me no alternative but to resign, to take effect from 18th May 1993.I will be seeking advice to ascertain whether or not I have a case for constructive dismissal against Corby Borough Council."The Council did not reply to that letter.In those circumstances the submissions of the Council were that there had been no dismissal of Mr Barratt, within the meaning of s.55 of the Employment Protection (Consolidation) Act 1978 , since he resigned of his own accord and without any pressure from the Council. Alternatively, his contract of employment was frustrated by his illness since his incapacity, looked at before the 18th May 1993, was of such a nature that further performance under his contract of employment was impossible and therefore any subsequent dismissal by the Council would be ineffective and invalid. Thirdly, if there was an effective or valid dismissal by the Council, the dismissal was fair because the Council had taken all reasonable steps in the circumstances to investigate and consider his complaints and had, in all respects, acted towards him as a reasonable employer would have acted. Finally, and in any event, the Council submitted that the Tribunal had no jurisdiction to consider the complaint because the application was not presented to the Industrial Tribunal within three months of the effective date of termination, namely the 18th May 1993. It was last point that led the Industrial Tribunal to hear the question whether the application was presented in time or not as a preliminary question.In the reasons for the decision the Tribunal dealt with the preliminary point under s.67 of the 1978 Act as follows: they accepted that the 18th May 1993 was the date contained in the letter written by Mr Barratt and received by the Council on the 22nd June. They said:
"it is perfectly clear from that evidence that the parties accepted that the effective date of termination was the 18 May 1993 and therefore this application was out of time and Mr Murdock [Mr Murdock was of the Corby & District Welfare Rights Group and was representing Mr Barratt] came to the Tribunal and told the Tribunal that he was applying under the `reasonably practicable' test."
Despite this, the Tribunal felt that it should enquire on the evidence as to what was the effective date of termination, because that was the date from which the three months' time would run.The Tribunal looked at the evidence about Mr Barratt being off work sick and the fact that from the 16th May the Doctor did not sign Mr Barratt off sick. They also referred to evidence that the Council had not replied to the letter which they received on the 22nd June. The Tribunal commented as follows:
"the Tribunal consider that that is an unusual practice for an employer to take because in the Tribunal's experience it is normal for an employer to acknowledge and accept the resignation of an employee. Nevertheless in this case, that did not happen."
The Tribunal referred to evidence given on behalf of the Council that Mr Barratt was on the Council's books until the 22nd June, i.e. until the receipt of the letter of resignation. The Tribunal concluded as follows:
"In other words he was an employee of the Council until the 22 June 1993. Now, the other matter that we have had to take into account when deciding on the evidence what was the effective date of termination, is the case that has been presented to us by Mr Bowers for the respondents"
By that they meant the decision of the Employment Appeal Tribunal in Crank v. HM Stationary Office [1985] ICR 1. That was a case strongly relied upon by Mr Bowers, on behalf of the Council, both in the Industrial Tribunal and on this appeal. The Industrial Tribunal attempted, in paragraph 2 of their decision, to distinguish that case.The Tribunal went on to state one further matter relevant to their decision and to this appeal: the reason why Mr Barratt stated the 18th May as the date for his resignation. The Tribunal stated that the choice of date:

"had to do with his desire to obtain welfare or State benefits."

The Tribunal said:
"we also have to look at the facts as outlined by Mr Dobson [the Council] that there was a meeting on the 22 May 1993 at which the applicant [Mr Barratt] and his representative were present, when the applicant was told that probably sometime in the future he may be dismissed for health reasons. We also take into account the fact that the applicant was on the books and therefore an employee until the 22nd June 1993, the date of the receipt of the letter which was not acknowledged by the respondents [the Council]."
So, the Tribunal took the unusual position that, despite the fact that the case had been run, until the date of the hearing, on the basis that the effective date of termination was the 18th May, the effective date of termination was the date of receipt of the letter on the 22nd June.Mr Bowers submits, on behalf of the Council, that the reasoning of the Industrial Tribunal is flawed by legal error and that the decision cannot stand. It should be reversed and the matter remitted to the Industrial Tribunal to deal with the question of reasonable practicability. To lay the basis of his legal submissions Mr Bowers referred to two subsections of s.55 of the 1978 Act which deal with the meaning of dismissal.

(c) which provides:

"Subject to subsection (3), an employee shall be treated as dismissed by his employer if, but only if, -
. . . .(c) the employee terminates that contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct."That covers a case of constructive dismissal.On the meaning of the effective date of termination he referred to subsection (4)(b) which provides:

"In this Part `the effective date of termination' -

. . . .(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect"This was a case where the contract of employment was terminated without notice.The crucial question raised by those provisions is on what date did the termination take effect, bearing in mind that the only case put forward by Mr Barratt is one of constructive dismissal.There is no dispute that the legal elements of constructive dismissal are that there should be a repudiatory breach of contract by the employer, going to the root of the contract of employment; that that breach is accepted by the employee as terminating the contract and that he communicates his acceptance of the breach to the employer so that the employer knows that that is the reason which the employee is giving for leaving employment.The case law foundation for Mr Bowers' submissions is the case mentioned in the Tribunal's decision Crank v. HMSO , a case which the Tribunal sought to distinguish. It is clear from the decision that, if the case cannot be distinguished from the present one, and it applies, the inevitable result is that this appeal should be allowed on the basis that in law the only permissible date of termination is the 18th May 1993. The facts in the Crank case are summarised in the headnote as follows:
"In 1983 the employers ceased trading at the premises where the employee worked and the employee was offered employment elsewhere. On 2 September 1983 the employee left the employers without telling them that he would not be moving to a new location and the following week he obtained employment with different employers at the same premises. On 5 September wrote to the employers asking for a redundancy payment and on 14 September, in reply to a letter from the employers asking why he was not working at the new location, he wrote offering his resignation as from 2 September which was accepted. On 5 December he complained to an industrial tribunal that he had been constructively dismissed and that the dismissal was unfair. The industrial tribunal considered as a preliminary issue whether the complaint had been presented within three months of the termination of employment as required by section 67(2) of the Employment Protection (Consolidation) Act 1978.
The tribunal rejected the employee's contention that the effective date of termination within the meaning of section 55(4) of the Act of 1978 was the date on which his letter of 14 September was received by the employers and held that 2 September was the effective date of termination as had been agreed between the parties. They further found that since it was reasonably practicable for the employee to have presented the complaint in time, they had no jurisdiction to hear the claim.

On the employee's appeal:-

On the ground that since the parties had retrospectively agreed that 2 September was to be taken as the date of termination of the contract of employment even though the contract was subsisting after that date, and there was nothing in section 55(4) of the Act of 1978 which required a later date to be taken, the industrial tribunal's decision on the preliminary issue was correct and the complaint would be dismissed."The decision of the Employment Appeal Tribunal contained in the judgment delivered by Peter Gibson J referred to the letters which had been exchanged. They clearly showed as a fact that the parties had agreed on the earlier date of 2 September as the date of termination.

The Judge commented at page 4F:

"It is, we think, common ground between Counsel that the parties were bound by the agreement reached by the exchange of letters and that there was a mutual release by the employee and the employers of their respective obligations under the contract of employment, and that such release was intended to take effect as at 2 September 1983. The question is how one applies the statutory words to those facts."
The Tribunal stated the reasons for its decision on page 5 between B & C as follows:
"In the present case it is a striking feature that it was the employee who himself suggested and asked agreement for 2 September 1983 as being the date from which his resignation was to take effect, and the employers agreed to that. We think it is clear therefore that both sides intended that the contract should be terminated as of 2 September. Why, in those circumstances, should one not treat the effective date of termination, for the purposes of the statute, as being 2 September? Of course it is right that on 13 September (to select one date by way of example) the contract of employment was still subsisting, but the position that we have to consider is that which has arisen in the light of the agreement between the parties. We think that the common sense answer to the question `When was the effective date of termination?' is that which the industrial tribunal reached. Both parties were therefore bound and we can see no sufficient justification to give the wording of the statute a special meaning so as to treat the termination as not having taken effect until a date later than that which the employee and the employers had agreed was the date of termination."
In his submissions Mr Bowers pointed out the points of similarity between the decision in Crank and this case. In both the employee had suggested the date of termination. Mr Barratt had suggested a date which was convenient to him. The Council had accepted that date. It is true that they had not written a letter in reply to the letter they received on the 22nd June. It was not, however, necessary as a matter of law that they should write such a letter when what they were receiving from Mr Barratt was notification that he regarded himself as constructively dismissed. The employer Council had never disputed his selection of the date of the 18th May. Further, the fact that the contract was still subsisting after that date is regarded in Crank's case as immaterial. It is therefore immaterial in this case. What the Tribunal did, Mr Bowers submits, and we agree, was wrongly to regard as relevant to the question of the date of termination the fact that the Council had not responded to the letter of resignation. As a matter of law, as distinct from what is courteous or prudent, no response was required to be given by the Council. We agree with Mr Bowers that it is not possible to distinguish the case of Crank in the way that the Tribunal attempted. The Tribunal apparently regarded the Crank case as distinguishable on the grounds that there was there an explicit agreement created by the exchange of letters that the earlier date be accepted, despite the fact that the contract of employment continued, whereas in this case the Council did not take any positive step to acknowledge the letter received on the 22nd June or to accept the earlier resignation. They say at the end of paragraph 2 of their decision:
"There was no specific agreement to that effect and that in the Tribunal's view enable this Tribunal to distinguish this case from the Crank case."
Our comment is that that is a difference in the facts of the cases, but it is not a legally relevant difference. As the Crank case is in fact indistinguishable from the present case, it follows, in our view, that the Tribunal were wrong as a matter of law in taking the 22nd June as the date of termination. The only date that could be regarded as legally correct was the 18th May. In those circumstances the application was not presented in time. As it was out of time it was necessary for the Tribunal to consider the question which they did not think it necessary to consider, namely, the reasonable practicability test.In those circumstances we allow the appeal. The Tribunal erred in law in concluding that the resignation letter did not terminate the employment of Mr Barratt with effect from the 18th May. They incorrectly sought to distinguish the Crank decision and they misapplied and misinterpreted the provisions in s.55(4)(b) of the 1978 Act.A number of other arguments in the nature of estoppel were raised by Mr Bowers in his helpful skeleton argument. It is not, however, necessary for us to be embroiled in legal doctrines of that kind in order to decide the straightforward question which arises on this appeal.We are indebted to Mr Eley for the clear and concise way in which he has presented Mr Barratt's arguments. But for the reasons which we mentioned we are unable to accept them in the present case. He sought to support the decision of the Tribunal on the grounds which stated by the Tribunal in their decision. We have already explained why we are unable to uphold those grounds as a matter of law.The appeal, therefore, will be allowed. It was common ground between the parties that, in that event, the proper course to take would be to remit to a different industrial tribunal the question for decision under s.67(2) of the 1978 Act.