Hereford & Worcester County Council v Fidoe [1994] UKEAT 567_92_1406

EAT
Hereford & Worcester County Council v Fidoe
[1994] UKEAT 567_92_1406 · 1994-06-14
HIS HONOUR JUDGE LEVY QC: On the 4th August 1986 the Respondent to this appeal, Miss Fidoe, commenced employment with the Hereford and Worcester County Council. On the 15th September 1991, when she was working as a Clerk in the Public Rights of Way Department within the Committee Section, she had a job appraisal with an employee of the Council which she found distressing. We will not go into the reasons for which she found it distressing.On the 23rd September 1991, that is the Monday following the Friday of the appraisal of the 19th September, she had an interview with officers of the Council when the Appellants to this appeal, the Respondents below, say, she terminated her employment within the provisions of Section 55 of the Employment Protection (Consolidation) Act 1978 . Part V Section 55(4) of the Act defines for the purposes "the effective date of termination" and reads so far as is material:
"(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which that notice expires: (b) in relation to an employee whose contract of employment is terminated without notice, means the date of which the termination takes effect;"
and it is common ground that subparagraph (c) does not apply here but the words on which this appeal focuses are the words "whose contract of employment is terminated".On the 30th September, the following week, a letter was sent to Miss Fidoe by the Appellants.On the 2nd October a reply was sent to the Appellants:
"I am writing to you to give official notice of the termination of my employment with Hereford and Worcester County Council.
It is unfortunate that my employment has had to end in this way and although I have decided not to take a grievance procedure against Mr Williams. I feel that I must put a case forward for constructive dismissal.I refer to your recent letter of 30th September 1991 in which you state I was 'prepared to forego three or four weeks salary'. I do admit to saying that I accepted I may lose some of my salary. In the circumstances, I should be grateful if you could inform Treasurer's to pay my salary up until 21 October which is four weeks from the date I verbally gave notice, 23 September 1991."On the 31st December 1991, Miss Fidoe made an application to the Industrial Tribunal, basically, on the grounds of constructive dismissal.There was a hearing on the 4th June 1992 before the Birmingham Industrial Tribunal where the preliminary point was under review as to whether the proceedings had been started in the three months permitted by Section 67 of the 1978 Act. The Tribunal's unanimous decision was that:"the tribunal has jurisdiction to entertain this application".That decision was communicated to the parties on the 29th June 1992.A Notice of Appeal was received by the Employment Appeal Tribunal on the 4th August 1992. Unhappily, it has not been until today that the appeal has been heard. Mr Cavanagh appears for the Appellant today. Miss Fidoe has decided not to attend and has sent us a letter. Mr Cavanagh has drawn to our attention a decision of Knox J., given since the decision of the Tribunal, in the case B M K Ltd & Another v. Logue [1993] ICR 601 in which Knox J. and his colleagues held allowing an appeal on a time point:
"that the provisions of section 55(4)(b) of the Act of 1978 were applicable to cases of constructive dismissal, and, accordingly, the effective date of termination was the date on which the termination of the applicant's employment took effect; that there was no universally applicable rule in constructive dismissal cases that termination took effect only when acceptance of the constructive dismissal occurred; that whether or not the applicant's employment had terminated depended on the actual legal relationship between the applicant and the companies rather than the applicant's understanding of that relationship; and that it was sufficient to terminate the relationship of employer and employee that by 17 March 1992 it was clear that the applicant had ceased to be a director, and thereby chairman of either company, with the result that the originating application presented on 17 June 1992 was out of time."
The facts of that case are related to an applicant, who was the chairman, who had been dismissed as director and on receipt of his dismissal said that:
"his removal as a director made it impossible for him to carry out the terms of his employment and constituted a constructive dismissal"
There was correspondence, as a result of which, he argued that his actual dismissal took effect later.Mr Cavanagh has submitted to us that the Industrial Tribunal applied the wrong test. They looked for clear evidence of communication of informal resignation rather than looking for the date on which termination took effect. If they had done the right test their conclusion would not have been that the termination of employment took place either when the letter of the 2nd October was written or when it was received. They would (or might) have concluded that the termination of the Applicant's employment took effect on the 23rd September 1991. He has taken us, very carefully, through the Notes of Evidence. He submits that it is clear from the evidence and from the decision itself that it is apparent beyond peradventure that the Tribunal did not apply Section 55(4)(b) of the Act of 1978 as Knox J and his colleagues had suggested. He focused on the words, which the Industrial Tribunal use in paragraph 11 of the full reasons, where we find this:
"However, the tribunal looked at the facts as a whole and satisfied themselves that the only clear evidence of words of resignation with intent to terminate her employment, were those which were given in this last letter."

(that is the letter of the 2nd October 1991)

"Resignation had not taken place before that event."

Mr Cavanagh has drawn our attention to the decision of the Court of Appeal in Dobie v. Burns International Security Services (UK) Ltd [1984] ICR 812 and particularly the concluding paragraph of the judgment of the Master of the Rolls which we find at page 818G which reads:
"Once you detect that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection. It is only if it is planing and unarguably right notwithstanding the misdirection that the decision can stand. If the conclusion was wrong or might have been wrong, then it is for an appellate tribunal to remit the case to the only tribunal which is charged with making findings of fact."
We have looked carefully at the evidence which was before the Tribunal below. We see that on the 23rd September Miss Fidoe says she told Mr Renney, who is a principal in the department where she worked, or had an important role in the Council at any event:
"I told Mr Renney I would not be going back unless anything else could be resolved."
We accept that there is an ambiguity. Was she saying that she was not going back to her job? Or was she saying that she was not going back to her job unless her employers took steps to make it satisfactory to her in a way she felt that could be expected of them bearing in mind her length of employment with the Council, and bearing in mind that there was an incident which they had not then investigated.It is not clear to us from the evidence which we have had that a Tribunal which had focused on the judgment of Knox J. and focused on the events of the 23rd September last year and directed itself properly must have come to the conclusion, though we think it might well have come to the conclusion, that the Industrial Tribunal reached. In those circumstances we accept Mr Cavanagh's submissions that we have no alternative other than to remit this case back to the Industrial Tribunal from which it came. We do not think this is a case which it is essential should be heard by the Tribunal which heard it rather than by another tribunal. What we would like to happen is that it is heard as soon as possible, because, obviously matters are very stale for both the parties.We would add this. There are difficult matters of mixed fact and law which arise in the case. We would hope that, if possible, the Respondent might have the assistance of representation so that the Tribunal rehearing the case can have the benefit of legal submission from both parties.There is one further note which we would like to add to this judgment. In another case to which we were referred by Mr Cavanagh, namely, Robert Cort & Son Ltd v. Charman [1981] ICR 816, Browne-Wilkinson J., as he then was, said this at page 821:
"We consider it a matter of the greatest importance that there should be no doubt or uncertainty as to the date which is `the effective date of termination'. An employee's rights wither to complain of unfair dismissal or to claim redundancy are dependent upon his taking proceedings within three months of the effective date of termination (or in the case of redundancy payments `the relevant date'). These time limits are rigorously enforced. If the identification of the effective date of termination depends upon the subtle legalities of the law of repudiation and acceptance of repudiation, the ordinary employee will be unable to understand the position."
We have some sympathy for Miss Fidoe who will have great difficulties in understanding the position here but that is as maybe. In the circumstances, we, not without regrets, allow this appeal and we would like to thank Mr Cavanagh for taking us very carefully not only through the cases which we have referred to in this judgment, but the other material cases in the course of today. We would add that Mr Cavanagh made it clear to us that it would be open to Miss Fidoe to take a point, if there is a re-hearing, which was not taken below, namely whether it would have been appropriate for the Council not to have accepted her resignation, if that is what it was, on the 23rd September 1991, given the circumstances in which it was made and given the fact (and we know not of this) that she might have been in a highly emotional state on that date for whatever reason.