Lineham v Cleveland County Council [1995] UKEAT 238_95_1905

EAT

Lineham v Cleveland County Council

[1995] UKEAT 238_95_1905 · 1995-05-19

JUDGE SMITH QC :

Mrs Marion Lineham appeals against a decision of an Industrial Tribunal on 11th January 1995 sitting in Middlesborough whereby the Industrial Tribunal held that they had no jurisdiction to deal with the complaint because their finding was that Mrs Lineham had not been dismissed and that she was accordingly not in anyway made redundant, so that their finding was that they had no jurisdiction.

Mrs Lineham's case was presented before us, as it was before the Tribunal, by Mr Lineham in person. He clearly feels extremely strongly about this matter and we may say that there are some grounds, as indeed was recorded properly and carefully by the Chairman of the Industrial Tribunal for Mrs Lineham and, indeed, Mr Lineham being upset about the way in which this matter was handled by the County Council. There is no doubt at all that the County Council did make mistakes and got into a position where they compounded an error that they had already made. In a Notice of Appearance which they put in in answer to Mrs Lineham's claim that she had been unfairly dismissed on 28th April 1994 and claiming a redundancy payment the County Council proceeded to compound the error they had made earlier by stating, indeed conceding, that there had indeed been a dismissal. But what then happened was that by a letter of 4th November 1994, [which Mr Lineham reasonably describes as being a submission because in a way it does read like that,] the County Council completely changed their tack and position altogether by saying that letters which they had earlier sent to Mrs Lineham, namely one letter dated 16th February 1994, and a follow up letter of 26th May 1994, by which they had purported to terminate Mrs Lineham's employment with effect from 28th April 1994, were invalid and of no effect. What they then proceeded to say and admit to, was that they had got matters wrong, because they said that the letter of 16th February 1994 purporting to be a letter of termination of employment, having been analyzed, as they put it, by their lawyers, is a standard letter which is only sent to employees who have requested early retirement. They then go on to say:-

"2 Mrs Lineham has never submitted an application for early retirement."

Well that is perfectly correct she had not. They then have to go on to say in paragraph 3:-

"3 In the absence of an application to retire the letter of 16th [ and I would interpolate also the letter of 26th May ] is invalid in respect of termination of employment for reasons of retirement."

So they go on to say:

"... There has been no dismissal and consequently, no jurisdiction in the Tribunal."

That was a complete change of tack, it must be said, from what they had said in their answer to the originating application, their Notice of Appearance, (which is at page 60 of our bundle) because at page 60 they say, in answer to Box 3 "Was the applicant dismissed?" " Yes. Dismissal due to ill health." They then set out the grounds in some detail at pages 61 and 62 of our bundle by which time one would have thought they would have reviewed the matter properly, and they appear to be concluding in paragraph 8 that there was a dismissal on the grounds of ill-health. They then proceed to say, in our judgment most unfortunately, "The Application is vexatious, frivolous and out of time."

It follows, in our judgment, that the difficulties in this matter and the consequent problems that Mr Lineham and his wife have faced have largely been brought about by mistakes made by the County Council. However that is not what we can be concerned with. We can only be concerned, as I have made clear to Mr Lineham, and I think he does understand the position, to look at the decision of the Industrial Tribunal and see whether it shows that there has been any error of law, that is the extent of our function in the matter.

I must next refer to the background giving rise to the application before the Tribunal.

Mrs Lineham had been employed in 1982 by the County Council as a bus escort. Most unfortunately, after ten years of loyal and faithful service, in 1992 she had an accident when escorting a disabled pupil off a bus. That accident is the subject of litigation, presumably in the High Court, with which we are not concerned. She went on sick leave as a result. She has never been able to return to work since through ill health. The County Council apparently has a discretionary retirement gratuity scheme, which involves an agreed leaving arrangement, including retirement by reason of ill-health. It plainly requires that the applicant, in relation to such a scheme, namely the employee must apply for such retirement on the appropriate form, before that scheme can go into effect.

By October 1993, it is said, and accepted by the Tribunal, no doubt quite rightly, that the appellant, Mrs Lineham, had exhausted her rights to sick pay under the terms of her contract of employment. But she was still off work through ill health. Now it is about this point that things started, unfortunately, to go wrong. Because there were two letters sent, as I have already said, by those superior to Mrs Lineham in her department. In which unfortunately errors were made. Because a letter dated 16th February 1994, which is at page 55 of our bundle, is headed "Early Retirement due to Ill Health" and states in the first paragraph "Following your recent request to retire from your post" but that was a misstatement of fact because there had been no such request, as the Tribunal found and as the County Council admitted. The second paragraph, went on "You are entitled to a period of notice" and so on, and it ended by saying "Your employment with this Department will, therefore , terminate on 28th April 1994." That was the first letter where matters went wrong. And then later on there was a further letter which is in the bundle before us, where the error is repeated namely a letter by Mrs Jamieson written on 26th May 1994:-

" With reference to my letters of 16th February and 11th April, 1994, I confirm that as Dr McGuire, Consultant in Occupation Health, considered that you would no longer be able to follow your employment with this Department, your employment was terminated with effect from 28th April. 1994."

It may be that there are explanations for those letters having been sent in that way. There is a reference by the Tribunal to a certain explanation for them which I do not propose to set out in this judgment because it will not assist matters in any way, but there is an explanation there given by the Chairman in dealing with the matter.

In addition, a P45 was sent through and all those matters undoubtedly caused difficulties and upset as far as Mrs Lineham was concerned, and Mr Lineham, because no request had ever been made for her to retire due to ill health. So it was that the proceedings were brought for unfair dismissal.

What then happened was that the County Council compounded its error, we repeat, by maintaining in its Notice of Appearance that there had indeed been a fair dismissal on grounds of ill health, but that there was no redundancy position. That had the result that it was not until the submission that was made by the letter of 4th November 1994 that the County Council began to put matters right, or try to put matters right. They were then allowed, the matter having been considered carefully by the Chairman at the hearing before the Industrial Tribunal, to amend their application, and to plead their proper case which was that the purported dismissal, was in fact an nullity and that their own actions were ineffective in law. Since only the County Education Officer has the right to dismiss, those within the department, no doubt acting in good faith, had in fact no authority whatsoever to write the letters that they had in the absence of any application or request by Mrs Lineham to retire.

So that is what the Chairman of the Industrial Tribunal had to deal with.

We have looked at the Chairman's reasoning and the decision of the Industrial Tribunal. The Tribunal held that the dismissal letter was an nullity due to lack of authority. They also held that it was generally understood and recognised by both sides that only the County Education Officer could dismiss and accordingly there was no doubt, that even considering ostensible authority or anything of that kind, it was perfectly clear that there was no authority to dismiss the appellant. They concluded that the consequence of that was that the appellant remained in employment with the respondent and had not been dismissed, as is most clearly set out in paragraph 7, the final paragraph of the decision. They held that there had been no question of any redundancy situation because there was not a dismissal and, in any event, Mrs Lineham had simply been replaced in the job because, most unfortunately, she was no longer fit and able to work. Accordingly, the Industrial Tribunal concluded that they had no jurisdiction in the matter, because there had been no dismissal.

We have looked at the decision carefully. We should emphasise that our position in the matter is that we can only allow this matter to proceed to a full hearing if there is any question of law that arises and we are satisfied that there is no question of law in this particular case.

We consider, I should say, that the Industrial Tribunal dealt with the application fairly, properly, and carefully in all respects and accordingly we must dismiss the appeal. We do note that at least in their submission of 4th November 1994, the County Council set out the options which remain open to Mrs Lineham:-

"She may elect to apply for early retirement on grounds of sickness and receive a gratuity, details of which have been sent to her by the Superannuation Officer of the County Council. The other option is to be dismissed on grounds of incapacity. In either case, Mrs Lineham may elect for payment in lieu of notice as a lump sum or a period of notice during which her previous salary will be reinstated."

We very much hope that, with the co-operation of both sides, this matter will now be taken up again at a senior level within the County Council provided that there is the necessary degree of co-operation from Mr and Mrs Lineham, and we hope that this unhappy saga can be resolved. However, as far as our powers are concerned, we regret that there is no question of law here and really we view the decision of the Industrial Tribunal, as being one where Mr Lineham, on behalf of his wife, succeeded in a way in establishing beyond any doubt that his wife had not been dismissed, and that she remained an employee, although unfortunately not an active employee of the respondent council, as she does until today's date. We would hope that Mr Lineham would go away from this matter today believing that justice has been done in that sense.