Howson v National Association Of Citizens Advice Bureaux [1996] UKEAT 1084_95_2706

EAT
Howson v National Association Of Citizens Advice Bureaux
[1996] UKEAT 1084_95_2706 · 1996-06-27
MR JUSTICE MUMMERY (PRESIDENT): This appeal is brought by Mr Howson. The decision appealed against is that of the Chairman, Mr E Lloyd Parry, sitting at Liverpool on 26 June 1995.In the Extended Reasons notified to the parties in August 1995, the Chairman decided that Mr Howson's complaint that he had been unfairly dismissed by the Respondent, the National Association of Citizens Advice Bureaux, should be dismissed. The reason why the claim was dismissed, was that Mr Howson had not in fact been dismissed by the Respondent. There was no operative notice of dismissal. Therefore he had no standing to pursue a case in the Industrial Tribunal claiming unfair dismissal.Mr Howson served a Notice of Appeal on 10 October 1995, alleging that there were errors of law in the decision, and asking this Tribunal to set aside the decision of the Industrial Tribunal and to allow his appeal. The Notice of Appeal made various criticisms about the way in which the law had been applied to the facts of his case. The case was listed for a Preliminary Hearing in this Tribunal in order to see whether the grounds of appeal raised a reasonably arguable question of law. The Preliminary Hearing took place on 24 January 1996. Mr Howson appeared in person. The Tribunal decided to allow the matter to proceed to a full hearing. Notice was given that the full hearing of the appeal would take place today.The Notice of Hearing was sent out on 10 May 1996 informing both the Appellant and the Respondent that the case would be heard at 11.30 a.m. today. The Respondents indicated that they would not be attending the hearing. Yesterday an application was received from Mr Howson for the hearing to be adjourned. The letter, written on his behalf by a Mr Smith, is dated 25 June and was received on the 26th, saying:
"I am writing on behalf of Mr Howson as he is presently unwell and is unable to attend the hearing scheduled for Thursday 27th June. I live in the same house as Mr Howson and assist him when his health is poor. I have been asked by him to send his apologies for being unable to attend but he has been over-exerted lately with preparation for his appeal and other unavoidable pressures. He has relapsed in his sufferings from severe symptoms of chronic fatigue syndrome and is unable to travel and finding it difficult to concentrate. He asks me to inform you that a written submission on which you will largely rely is almost complete but asks that on this occasion you grant an adjournment in the knowledge that he will have very little work to do for a later hearing."
Attached to that letter was a Doctor's Certificate from a Dr Mark Burns in Liverpool, confirming that he is Mr Howson's G.P.:
"Mr Howson suffers from chronic fatigue syndrome and because of his illness he will not be able to attend his forthcoming court case."
Mr Howson was informed that his application for an adjournment was refused. We have considered his case and the papers which contain a Skeleton Argument prepared by him for the hearing today. There has also been sent a list of twenty-nine authorities which Mr Howson would wish to cite if he were present. We should mention a further communication which we have received from Mr Howson this morning, following a telephone conversation in which it was confirmed to him that the hearing would proceed today. He says in the fax:
"... I again request that my EAT hearing is adjourned as I am unable to attend. I suffer a severe illness, a brain disease and am unable to control external circumstances which may lead to relapse.
I believe justice will be served by granting an adjournment as this EAT should not be happening given the disgraceful decision of the IT chair. I have tried my best to resolve the problem, attending the preliminary hearing and preparing my case, but would not wish to be denied the opportunity to present my case, which is not straightforward, because I am unable to travel.What is also more just than refusing the adjournment is to grant the adjournment and pass on the costs to me as presumably protecting the public purse is paramount and refusing an adjournment should be weighed against the possibility of another appeal and/or application for judicial review.If the tribunal were to proceed I would them to consider the list of authorities I have sent and the written submission to the preliminary hearing of the EAT which I was informed this morning the tribunal have in their papers ."He goes on to say more about the circumstances in which he has brought this appeal.The document that we have received is headed "Skeleton arguments for the Employment Appeal Tribunal to be held Thursday 27 June 1996." We take those as being, along with the authorities, the arguments which Mr Howson would wish to present to us if he were well enough to attend.The reason why we have decided not to adjourn this case is that we have read the papers, along with Mr Howson's written submissions. We have formed the view that there is no error of law in the Tribunal Chairman's decision. The decision sets out the findings of fact. Those findings were made at a hearing where Mr Howson represented himself and gave evidence on his own behalf. That evidence was not challenged because the National Association of Citizens Advice Bureaux did not appear and were not represented. In addition to hearing Mr Howson's evidence, the Chairman also considered a number of letters which he identified in the decision. They set out part of the history of the matter. On the basis of Mr Howson's oral evidence and the correspondence, Mr Lloyd Parry, the Chairman, came to these factual conclusions:
"(a) The applicant started his employment with the respondents on 12 June 1991. In April 1992 he started a sickness absence from which he has never returned. (b) On 12 May 1994, the respondents gave the applicant notice of termination of his contract of employment expiring on 12 July 1994."
We have read that letter (pages 17 and 18 of our bundle). That confirms his dismissal and gives the termination date as 12 July 1994.The Chairman went on to find that, before the termination date had been reached, the Respondents told Mr Howson that the notice would not expire on that date. The date of expiry was not specified. The Chairman found that the action of the National Association amounted to a withdrawal of the notice, despite what had been said in a later letter. They did not terminate the employment on 12 July and they did not replace it with another termination date.We have seen the rest of the correspondence. It is our view from that correspondence, as it was the Chairman's view, that the agreement reached between the parties was that the National Association would take no steps to terminate Mr Howson's employment, without giving seven days notice in writing to his solicitors. Attempts have been made to resolve the differences by negotiation. There have been extensions of time for lodging a Notice of Appearance. High Court proceedings have been started. A writ was issued on 6 December 1994. The Chairman's finding was that those proceedings had been started by Mr Howson, against the National Association of Citizens Advice Bureaux, for breach of contract. The claims that he is making in those proceedings include an injunction restraining them from dismissing him.In those circumstances the Chairman had to consider the Originating Application presented on 29 July 1994, in which Mr Howson claimed that he had been unfairly dismissed from his position as an Area Development Officer with the Respondents. He gave as the dates of his employment in Box 8 of the IT1, 12 June 1991 to 5 September 1994. He put in brackets after that `currently'. He alleges in the details of his complaint under Box 12 that there had been postponements of the termination date. He says that it currently stands at that date. He later refers to the fact that the Respondents have offered withdrawal of the notice of dismissal on conditions.The Chairman came to this conclusion on those findings of fact: that the complaint of unfair dismissal could not be pursued because Mr Howson was still employed by the National Association and had not been dismissed. Under the Employment Protection (Consolidation) Act 1978 the right conferred on every employee to which the provisions relate is the right is not to be unfairly dismissed by his employer. There is a definition of the meaning of "dismissal" in Section 55. The definition of dismissal provides in Section 55(2):
"... an employee shall be treated as dismissed by his employer if, but only if,-- (a) the contract under which he is employed by the employer is terminated by the employer,..."
There are other definitions relating to fixed terms expiring and to constructive dismissal, but they do not apply in this case.Mr Howson has not been dismissed, because the contract, under which he is employed, has not been terminated by the employer. The original date of notice of termination has been withdrawn and no new date has been substituted. The fact is, as the Chairman said in paragraph 5 of his Extended Reasons:
"... The date of expiry of the notice came and went, and the applicant remained in the respondents' employment. The new arrangement did not contain a date for the expiry of any notice. The applicant is, in effect, simply under warning that his employment may be terminated at some unspecified time in the future. That is not being under notice for the purposes of Section 67(4) which provides that an applicant may during a period of notice present a complaint of unfair dismissal."
The position, in brief, is that Mr Howson has not been dismissed. He is not under a period of notice of dismissal within the meaning of the Act. In those circumstances, the Chairman was, in our view, correct in law in concluding that the application should be dismissed.Mr Howson sets out various grounds of objection to the decision. In his Notice of Appeal he says that no valid reasons or grounds of law were given justifying the decision. He makes a complaint about the use of the procedure to strike out his claim. He makes objections to the way in which the Chairman conducted the hearing. He says that the Chairman appeared to take no notice or make notes of his submissions that no valid ground had been provided. He makes other criticisms of the decision as being perverse, involving a distortion of the facts and that the Chairman failed to have regard to his arguments or to precedents cited by him on Section 55 of the 1994 Act. Mr Howson submits that the Chairman should have adjourned his case in the Industrial Tribunal sine die while his action in the High Court proceeded. He says finally that he tried to present a submission to the Chairman in respect of an adjournment. He referred to the case of Warnock v Scarborough Football Club [1989] ICR 489 , which deals with the circumstances in which an Industrial Tribunal application may be stayed in the exercise of discretion, pending the hearing of High Court proceedings involving the same issue.That was a case in which the same issue arose in the High Court proceedings as arose in the Industrial Tribunal proceedings, namely, whether the employers had constructively dismissed the employee. The employer had started High Court proceedings for breach of contract. The employee raised the question that he had been constructively dismissed by the employer. The employee, in order to prevent his case from being time-barred, started Industrial Tribunal proceedings for constructive dismissal. The Employment Appeal Tribunal held that a correct exercise of the discretion was a decision that the Industrial Tribunal proceedings should be stayed, pending a resolution of the High Court proceedings which included the same issue. Mr Howson submits that that case applies to his and that he was wrongly stopped by the Chairman from making this submission and obtaining an adjournment.This point is repeated in his Skeleton Argument, along with a number of other arguments, objecting to the procedure in the Industrial Tribunal, and alleging that the Tribunal acted contrary to natural justice and ultra vires. His main point is that the Chairman ignored the facts of the case. Mr Howson had submitted that the gist of his case was that his contract had been suspended; that he did not have full contractual rights, pending the outcome of the High Court hearing, with a variation of the dismissal brought about by his threat of seeking an injunction. He said that his circumstances were closely analogous to, if not the same as, someone proceeding through an internal appeals procedure and needing to complain of unfair dismissal to the Industrial Tribunal to protect the claim against the statutory three month time limit. He argues that this position is abundantly supported by case law and by rational interpretation of statute.These points are elaborated in the remainder of his Skeleton Argument. He refers again to the principles in Warnock v Scarborough Football Club and argues that there are reasonable grounds for adjourning these proceedings pending a decision of his High Court case and that it was not correct in law to adopt the course taken by the Chairman in dismissing it.We have considered those submissions and we have reached the conclusion, as already indicated, that this appeal should be dismissed. The position, in our view, is simple. On the findings of fact made by the Chairman, after hearing Mr Howson's uncontradicted evidence, and having considered the relevant correspondence, on those findings of fact, the correct conclusion is that Mr Howson cannot pursue a claim for unfair dismissal because he has not been dismissed. He is still employed by the National Association of Citizens Advice Bureaux. He is not under notice of dismissal, because the original notice specifying a termination date has been withdrawn and has not been replaced by another termination date and an agreement has been reached. If there is no dismissal and no notice of dismissal, there is no right to complain to an Industrial Tribunal. It is right to refuse to allow the case to remain. The correct course was followed in dismissing it.This will not prejudice Mr Howson. The time for bringing a case to an Industrial Tribunal, when a complaint is made of unfair dismissal, is laid down in Section 67 of the 1978 Act which provides:
"(2) ... an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or within such further period as the tribunal considers reasonable..."
As there is no effective date of termination of Mr Howson's employment, then time has not started to run against him. It will not start to run against him, until there is an effective date of termination of his employment. There is no risk of his claim becoming barred by the time-limit provisions of Section 67.As far as we have been able to gather about the issues in the High Court proceedings, we are unable to see that the dismissal of the Industrial Tribunal proceedings will prejudice his High Court proceedings. As we understand, the High Court proceedings which are summarised by the Chairman in his decision, the claim there is that the National Association of Citizens Advice Bureaux should be restrained from dismissing him. That claim is not prejudiced by a decision of the Industrial Tribunal, that he has not been dismissed and is not under notice of dismissal. For all those reasons we dismiss this appeal. There is no error of law in the decision of the Industrial Tribunal Chairman.