Gunatilaka v London Borough Of Hackney [1995] UKEAT 1030_93_0205

EMPOLYMENT APPEAL TRIBUNAL
BAILII case number: [1995] UKEAT 1030_93_0205Case No Appeal No. EAT/1030/93Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
GunatilakaLondon Borough Of Hackney
Date 2 May 1995
MR JUSTICE MORISON : This is an Appeal against a unaminous decision of an Industrial Tribunal held at London (North) on 27th October 1993 that it had no jurisdiction to entertain the complaints made by Mrs Gunatilaka, whom we will call the Appellant, against the London Borough of Hackney, whom we shall call the Council, that, the Council had unfairly dismissed her and made unlawful deductions from her wages.The essential facts are these; the Appellant is a Teacher, who was at the relevant time employed by the Council in its capacity as the Local Education Authority, her employment with the ILEA having transferred to them by virtue of the Education Reform Act 1988 . As from 15th April 1991, the date when the Council took over the responsibilities of the ILEA, as the Education Authority for the area, the Appellant was off sick and never returned to work. In other words, she never attended for work since becoming employed by the Council.She was seen by the District Medical Officer who was of the opinion that she was permanently unfit for work. And he recommended that she be retired on medical grounds. That recommendation was accepted by the Council, who wrote to the Appellant on 24th October 1991 informing her of this, and saying, amongst other things, that her employment with the Council:

"... is therefore terminated with effect from the date of this letter."

Prior to this letter, the Appellant had submitted an application to be considered for Early Voluntary Severance, which we will call EVS. But as the letter of 24th October said:
"Unfortunately, because you have been retired on medical grounds, this makes you ineligible for consideration under the Authority's Voluntary Severance Scheme."
Under the Council's Employment Rules, a person's service does not come to an end until after the expiration of the period of notice to which he or she is entitled, to take effect from the deadline for presenting an appeal against the dismissal. In this case, as the letter makes clear; the effective date of termination was 6th January 1992, namely two months after 6th November, being 21 days after the date of the District Medical Officer's examination. All this was explained in the letter. There is no dispute that this letter was received and that the Appellant ceased to receive sick pay or any other payment from the Council from the end of October 1991, save for pension.Because the right hand in the Council did not know what the left hand was doing (the Tribunal described the Council's Education and Finance Departments as extremely inefficient) they failed to send the Appellant her P45 and despite what was written in the letter, they included the Appellant in their mailshot to all teachers inviting volunteers for EVS. This invitation was contained in a letter dated 29th November 1991, which the Appellant did not receive until 6th February 1992 on her return from Sri Lanka. By that date, the closing date for applications for EVS, 20th December 1991, had passed. However, on her return, she spoke to a clerical officer, and was told that she was not too late to apply, because the applications were not going to be considered until 2nd March 1992. She did not tell that officer that she had retired on health grounds, and there is no reason to believe that the officer was aware of the true position. However, when she made her written application it was rejected and endorsed:

"... has already resigned ..."

The Council failed to tell her that her application had been rejected; no doubt because they believed she must have realised that EVS was not an available option, as she had already been told. She consulted solicitors who wrote to the Council, who failed to reply to letters timeously. They eventually replied in the middle of December 1992 saying that the Appellant's pay had been stopped because her employment had ceased on medical grounds and that her contract had ended on 6th January 1992.On 17th March 1993, the Appellant presented her complaints to an Industrial Tribunal. It is common ground that the time limits for such complaints are three months, beginning with the effective date of termination (for the complaint of unfair dismissal) and three months from the payment of wages from the which the alleged unlawful deductions were made (in relation to a claim under the Wages Act 1986 ). The Industrial Tribunal correctly directed itself that they had to decide:The date from when the time ran, in each case.Whether the complaint was presented within three months from that date.If the complaint was presented more than three months after that date:(a). whether it was reasonably practicable for the complaint to be presented within the three months period and if not, (b) whether it was presented within such further period as an Industrial Tribunal considered reasonable.It was argued on behalf of the Appellant before the Industrial Tribunal that, in relation to the claim for unfair dismissal, the effective date of termination was 18th December 1992, when she knew that EVS was not a possibility. In which case, the application was in time, three months from that date being before the completion of the three months, being before 17th March 1993. Or alternatively, if it was 6th January 1992, it was not reasonably practicable for the Appellant to have presented her complaint to the Industrial Tribunal within the period of three months from that date, because she was deflected from doing so by the mailshot she received on 6th February 1992 on her return from abroad; and because she was only aware that her application to be considered under the EVS scheme had been refused when the Council wrote and informed her on 18th December 1992. In addition, it was argued, that she put in a Notice of Appeal against her dismissal which had the effect of postponing the effective date of termination. The Industrial Tribunal it was argued, should allow a reasonable period of time after that date, and due to her absence abroad, the solicitors could not obtain her signature to the IT1, but they sent it to the Industrial Tribunal as soon as they received it from her.The Industrial Tribunal's decision in this case, is, if we may say so, set out with the clarity with which this Tribunal has come to expect from this particular very experienced and careful chairman. Paragraphs 12 and 13 provide:12. The conclusion of the tribunal: We find that Mrs Gunatilaka's employment was ended by notice of medical retirement given by letter dated 24 October 1991 and the effective date of termination was 6 January 1992. If Mrs Gunatilaka wrote to the respondents giving notice of appeal, her letter was not received by the respondents and she made no enquiry to establish whether her appeal was proceeding. She knew that remuneration under the contract of employment had ceased. She was expressly informed in the letter dated 24 October 1991 that as she had been retired on medical grounds she was ineligible for consideration under the Authority's Voluntary Severance Scheme. The fact that she was sent a letter dated 29 November 1991 which, by her own admission, she did not receive until more than 3 months after receipt of notice of her medical retirement and 1 month after the last day of service did not justify an inference that the notice of medical retirement had been rescinded. The letter was plainly an administrative error. It was not an offer of early voluntary retirement but merely invited an application to be made which the respondents could accept or refuse. They did not accept her application because her employment had already ended with her medical retirement. We do not condone the respondent's inefficiency and negligent failure to respond to letters. At no time did the respondents inform Mrs Gunatilaka that the notice of medical retirement was withdrawn. There can be no doubt that her employment ended in accordance with the notice contained in the letter dated 24 October 1991, which Mrs Gunatilaka admittedly received. The effective date of termination was 6 January 1992, which was also the date to which wages were payable under the contract of employment. She received pension payments following her medical retirement and in March 1992 she received £6,123.06 representing the balance of the lump sum payable upon her retirement from the respondents' employment (A1 doc.16). If Mrs Gunatilaka had a grievance about the fairness of the grounds on which her employment was terminated, or the dismissal procedure adopted, or if it was her complaint that there was an under-payment of wages then it was open to her commence proceedings in the industrial tribunal on or before 5 April 1992. There has been no suggestion that this would have been reasonably impracticable. it is the unanimous decision of the tribunal that Mrs Gunatilaka's application was presented outside the 3 months' time limit prescribed by sections 67(2) of the Employment Protection (Consolidation) Act 1978 and 5(2) of the Wages Act 1986 and there is no jurisdiction to consider her complaints of unfair dismissal and unauthorised deduction from wages."
"13 Our decision is based upon the finding that the effective fate of termination of employment was 6 January 1992 and that it was reasonably practicable to present a complaint to the tribunal by 5 April 1992. Even if we had found that it was not reasonably practicable to present the complaint before Mrs Gunatilaka's solicitor received the respondents' letter dated 18 December 1992, a period of almost 3 months elapsed before the originating application was eventually presented on 17 March 1993. It was known that Mrs Gunatilaka was in Sri Lanka during the whole of that period but Mr Ratnasekera must have been aware that if the effective sate of termination was 6 January 1992 the 3 months' time limit for instituting proceedings had long since expired. He was able to communicate with Mrs Gunatilaka's son, who is a policeman, and could have advised him of the urgency of presenting an originating application of his mother's behalf and have obtained his authority to do so. The application could have been submitted by letter explaining that Mrs Gunatilaka was currently abroad and time would have stopped running. We are not satisfied that the originating application was presented within a reasonable time after Mr Ratnasekera was made aware of the respondents' contention in regard to the effective date of termination and on those grounds would not exercise our discretion to extend the time for presenting the originating application until 17 March 1993."
The Appellant criticises the Industrial Tribunals' decision on a number of grounds:That the letter of dismissal was not clear and unambiguous; and in the light of the "concession" made in the Council's IT3 that the manner in which the information contained in the letter was communicated "was contradictory and may have confused the Applicant" it was not open to the Industrial Tribunal to hold that the effective date of termination was clear.Neither party contended that the effective date of termination was 6th January 1992 and "the basis of such a finding is unexplained".The Industrial Tribunal failed to address itself correctly to the question whether the Appellant had written to the Council after she received their letter in October, and the effect that such a letter would have had.The Industrial Tribunal were unfair to criticise the solicitors for not putting in the claim more quickly after 18th December 1992, having regard, in particular, to the fact that they were allegedly acting under the Legal Aid Green Form Scheme.It seems to us that there is no merit in any of the points which have been raised to us.In the first place, like the Industrial Tribunal, we take the view that the letter of October 1991 was manifestly obvious in its import, and that the last possible date for the effective date of termination was 6th January 1992, and that it was sensible for the Tribunal to take that as the starting date, because it was the date most favourable to the Appellant. If the effective date of termination was the date of the receipt of the letter, namely 25th October 1991, the latest time for making a complaint was about 25th January, and by that date the Appellant had not received the mailshot about EVS. In our view, had those been the facts, the case for the Appellant would have been unarguable, as the Appellant plainly had time to make a complaint before she left for Sri Lanka.The Industrial Tribunal themselves indicated good reasons for taking the date as 6th January 1992, not least because they found as a fact that that was the date used by the Appellant when she completed a form in relation to her Pension Benefits a few days after receiving the disputed letter.It seems to us, as it seemed to the Industrial Tribunal that the letter makes it clear that as from 6th January 1991 she was no longer to be regarded as an employee or on the Councils books, for the purposes of any pay. The fact that in their IT3 the Council were prepared to accept that their letter was confusing, did not prevent the Industrial Tribunal from reaching a different conclusion after they had heard all the evidence, including that of the Appellant which the Council did not have the benefit of when completing their answer to the complaints.The Industrial Tribunal found as a fact that the alleged Notice of Appeal was never received by the Council. In those circumstances, there was no need for them to consider whether they believed it had been sent. A non-received Notice of Appeal cannot postpone the effective date of termination, but in the context of practicability and discretion the Industrial Tribunal were correct to consider the Appellant's conduct in relation to it. Had she made an appeal, she surely would have enquired about its progress and not left for Sri Lanka without having discovered what had happened, or when she should file or could file other medical evidence. Those facts negative a suggestion that due to the sending of the Notice of Appeal, if such was sent, it was not practicable for her to complete her IT1 in time, and that the Industrial Tribunal should exercise its discretion in her favour.The next question the Industrial Tribunal had to ask themselves was whether the Appellant could reasonably practicably have submitted a complaint of unfair dismissal before the end of three months, from 6th January 1992. They noted that she received a lump sum payment under her pension provisions in March. They were extremely sceptical about her evidence that she had appealed against her dismissal, and noted that she made no enquiries about the progress of such an appeal, and the Council denied ever having received it. She must have known that her Appeal had been disallowed by March, because she could not have thought that she was entitled to pension payments and no salary, if her employment had been continued. The only real case for suggesting that it was not practicable for the IT1 to be lodged before the expiration of three months commencing 6th January 1992, was the mailshot she received from the Council, inviting her and all others to whom it was addressed to apply for EVS. But it seems to us, that the way that the Industrial Tribunal dealt with that suggestion cannot be faulted. This was a pure question of fact for them to decide and we cannot interfere with findings of fact.Finally, although it was unnecessary to their decision, we agree with what the Industrial Tribunal said about their discretion. These questions are for them and not us, and no point of law is demonstrated on this ground of appeal either.Accordingly we have no hesitation in dismissing this Appeal.