Kemutec Group Ltd v Whalley [1995] UKEAT 926_93_1710

EAT

Kemutec Group Ltd v Whalley

[1995] UKEAT 926_93_1710 · 1995-10-17

MR JUSTICE MAURICE KAY : The respondent in this case, Mrs K Whalley, began to work for the appellants and its predecessor companies as a secretary in January 1978. She did general secretarial work for the senior management of the company at their site at St Blazey in Cornwall. Before her dismissal, she had been working for some years for Mr J P Lee who was successively Manufacturing Manager and UK Operations Director.

In early 1993, the appellant company was considering re-organisation. Part of such re-organisation involved Mr Lee spending less time at St Blazey and more time at the company's other sites at Bristol and at Macclesfield in Cheshire. In due course that form of re-organisation became a reality and Mr Lee was to re-locate to Macclesfield.

On 1st April 1993 he had a meeting with the respondent and outlined the proposed re-organisation to her. We do not think we need to go into detail about what took place that day. Suffice it to say, that the respondent was unhappy about what she had been told, in that she believed that the consequence of the re-organisation from her point of view would be tantamount to a demotion. She also believed, wrongly in the circumstances, that she would be undertaking some of the work previously done by an office junior. She decided to resign, and wrote a letter to that effect on following day, 2nd April 1993. We say she wrote the letter on that day, in fact she committed it to a word processor on that day, and printed it out the other side of the week-end, namely 5th April 1993. She put her letter of resignation into a sealed envelope marked Private and Confidential, for the attention of Mr Lee, and placed it in his tray.

It seems that, as a result of some discussions she had with her husband, she had second thoughts about that and later retrieved the letter from Mr Lee's post tray, believing it to have been un-opened in the meantime. In fact, Mr Lee had telephoned the office in the meantime, had spoken to the accounts supervisor, and on being told about the Private and Confidential letter, had instructed the account supervisor to open it and read it to him over the telephone, this she had done.

Believing that the letter remained un-read, the respondent replaced it with another letter in which she requested early retirement on grounds of ill health. She is in fact a lady who suffers from rheumatoid arthritis.

Easter then intervened and the next meeting between the respondent and Mr Lee did not take place until 14th April 1993. The meeting of that date was an important one. It is apparent that Mr Lee felt very strongly about the retrieval of the letter from his tray. He regarded it as:

"... quite unacceptable ..."

and:

"... a major breach of discipline ... justifying her instant dismissal."

He considered it as:

"... undermining the essential trust and confidence which he placed in her."

These quoted passages are taken from page 3 of the subsequent decision of the Industrial Tribunal.

At the meeting on 14th April 1993, he told the respondent to clear her desk and leave immediately. At that time, her notice of resignation would still have had some time to run, as it would have terminated on 30th April 1993.

On the day after the meeting, Mr Lee wrote to Mrs Whalley a letter dated 15th April 1993, in which he purported to confirm the acceptance of her request to leave on 28th April 1993, and went on to say:

"I am sorry that you unable to come to terms with the proposed re-organisation which, as explained, is essential in these difficult times. Further more, following our brief meeting on April 14th, I would confirm that you were excused from working your notice period and were requested to leave on the same day, which you accepted."

Mrs Whalley never did return after 14th April 1993. On 22nd April 1993 she was sent her P45 together with a sum of money equivalent to the whole of her April salary. Thereafter she applied to the Tribunal claiming that she had been unfairly dismissed.

The events which we have described are complex and took some unravelling on the part of the Industrial Tribunal. Their task was not made any easier by the fact that the evidence of the two principle participants in the events did not coincide on all points, and particularly in relation to the meetings on 1st April and 14th April 1993.

The decision of the Industrial Tribunal can be summarised as follows. Contrary to the respondent's submission the Industrial Tribunal found that her notice of resignation or termination of employment stood, notwithstanding her subsequent retrieval of the letter from the tray. By the time of the retrieval, as we have said, the notice had already been read to Mr Lee. Accordingly, her claim to have been dismissed in circumstances where there had been no resignation was unsuccessful. The Tribunal therefore found that from the time of the communication of her notice of resignation she was serving out her notice in accordance with the document she had created. However, dealing with the events of 14th April 1993, the Tribunal appears to us to have found that she was dismissed on that date, and dismissed summarily. It is important that we quote the relevant passages from their decision. On page 3 of the decision, there appear the passages to which we have already made reference, wherein it is stated:

"Mr Lee found this [ the substitution of the letter ] quite unacceptable and regarded her action in removing a private and confidential letter from his post tray as major breach of discipline ... justifying her instant dismissal. He also saw her action as undermining the essential trust and confidence which he placed in her. He thereupon asked her to clear her desk and leave immediately."

At page 7 of the decision:

"... we do find that the Applicant was expressly dismissed by the Respondent on 14 April. It is well established case law that if an employee tenders his or her resignation subject to notice and the employer then curtails the employee's notice period by requiring the employee to leave earlier, then the employer converts what was a resignation into a dismissal. This is precisely was Mr Lee did on 14 April when he told the Applicant to clear her desk and leave immediately. Accordingly, in our judgement, the Applicant was dismissed but we accept Mr Lee's evidence that the reason for her dismissal was his loss of confidence in the Applicant as a result of her action in removing her letter of resignation from his post tray."

The Industrial Tribunal then went on to apply the provision of Section 57(2) and 57(3) of the 1978 Act, and came to the conclusion that the dismissal for that reason in those circumstances did not fall within the range of responses which a reasonable employer would take to such conduct. They went on:

"In our view, by no stretch of the imagination could the Applicant's action be construed as gross misconduct such as to justify instant dismissal."

A little later:

"Viewed in those terms, we cannot regard her action as constituting misconduct of a degree sufficiently serious as to warrant a dismissal in the eyes of a reasonable employer."

It is the case that at no stage did the Industrial Tribunal expressly state that they found the respondent, Mrs Whalley, to have been summarily dismissed. However, in our judgment, it is clear by reference to the words which the Tribunal used that they considered that she had been summarily dismissed on 14th April 1993. Having held her dismissal to be unfair, she was awarded compensation in the total sum of £3,722.00. Of this £3,380 was a basic award, but the Tribunal also awarded £242.00 as a compensatory award reflecting two weeks nett pay, and £100.00 for loss of statutory rights.

The appellants appeal to this Tribunal against the finding of unfair dismissal.

In the skeleton argument submitted on behalf of the appellants and in the submissions advanced to us by Mr Alcock on their behalf today, there has been an attempt to interpret the events of 14th April 1993 as amounting to a consensual agreement, whereby the respondent was relieved from having to work what remained of her notice period pursuant to her resignation. We have to say that this attempt at re-interpretation is untenable in the light of the Tribunal's findings. It is not suggested that the findings were perverse in this case and it is quite clear to us that the Tribunal's finding was one of dismissal on 14th April 1993. Indeed, it goes further than that, because having regard to the passages to which we have referred, it is abundantly clear that the Industrial Tribunal considered it to be a case of instant or summary dismissal on that date.

Mr Alcock's alternative submission is that even if there was a dismissal on 14th April 1993, it was a dismissal, he says, with notice terminating at the same time as the respondent's notice of resignation. The only difference being, according to the appellants, that the dismissal was accompanied by an instruction relieving the respondent of the obligation to work in the meantime. Again, having regard to the facts found by the Industrial Tribunal, and what we take to be the clear implications from the facts stated to be found, we do not think that there is room for that particular construction.

When one considers the decision of the Industrial Tribunal in the round, in our judgment it admits of no interpretation other than that on 14th April 1993 Mr Lee summarily dismissed the respondent, and, in so doing, he behaved unreasonably having regard to all the circumstances of the case. Those findings of fact inevitably produced a finding of unfair dismissal.

Appeals to this Tribunal lie only in respect of points of law. Having regard to what we find to be the Industrial Tribunal's clear holdings of fact, and the absence of any suggestion that they were perverse, it seems to us that it is inevitable that this appeal must fail. In reality it does not raise an arguable point of law because the facts found by the Industrial Tribunal were certainly facts open to it to find, and upon interpretation admit only of the interpretation to which we have referred. In all the circumstances therefore the appeal fails.

We have observed that there are oddities about the compensatory award that was made in this case. They are oddities that neither advocate has been able to explain nor can we find an adequate explanation for ourselves. That compensatory award forms but a small part of the overall award in this case, and we are relieved that no cross-appeal relates to it. Accordingly, it is not for us to disturb it.

}************************{

MR JUSTICE MAURICE KAY : Having regard to the provisions of Rule 34 of the Employment Appeal Tribunal Rules 1993, we do not think this is an appropriate case for an award of costs.