Lynes v Devon County Council [1996] UKEAT 618_96_0410

EAT

Lynes v Devon County Council

[1996] UKEAT 618_96_0410 · 1996-10-04

JUDGE HICKS QC:

Mr Lynes was employed by the Devon County Council as a part-time teacher of brass instruments by a letter of appointment dated 23 September 1993. The head teacher of the school at which he was employed dismissed him on 7 December 1995 and Mr Lynes brought a complaint to the Industrial Tribunal.

There were two parts to that complaint. The first was one of unfair dismissal contrary to the provisions of the Employment Protection (Consolidation) Act 1978 . The Tribunal dismissed that complaint on the ground that Mr Lynes, at the age of 76, although manifestly an extremely fit and able 76, was past the retirement age for teachers in his position and therefore outside the protection of the Act in its unfair dismissal provisions. Mr Lynes does not seek to appeal against that conclusion.

The second head of his complaint was that his dismissal was in breach of contract and the Tribunal on that found in his favour. He was entitled to notice, which the Tribunal found to be two weeks; he had no notice, and he was therefore dismissed in breach of that entitlement, but on that aspect the consequence financially was, as the Tribunal found, that no further damages fell to be awarded because he had received a sum which exceeded the maximum which could have been awarded by way of damages.

Thirdly, Mr Lynes made a complaint that the employers had not complied with Section 53 of the 1978 Act, which entitles employees to a written statement of the reasons for dismissal. If that is not complied with a Tribunal can either itself make a declaration as to what the reasons were, if the reasons given were inadequate or untrue, or can make an award of a sum equal to two weeks' pay, or it can do both.

So far as the decision concerning dismissal in breach of contract is concerned, Mr Lynes of course having succeeded does not appeal against the decision that he was dismissed in breach of contract, his point on that aspect of the appeal is that in his contention - and it was a contention that he had advanced by a letter supplementary to his original Notice of Application (well before the hearing) - the County Council's disciplinary rules and procedures applied and had not been complied with. That of course would not have altered the fact that in any event he was dismissed in breach of contract but it would, as we understand his submission, and as the Industrial Tribunal clearly understood it, have extended the date at which the dismissal could have taken effect and therefore extended the period over which damages would be assessed. Whether that would have made much difference in the end is not clear, because the period concerned would certainly have included the Christmas holidays over which Mr Lynes would not have been earning money. But that is the nature of that limb of the appeal. Mr Lynes says in his application that the Tribunal ought to have found that the disciplinary rules and procedures did apply.

The Industrial Tribunal clearly addressed this question. They discuss it in paragraphs 7-11 of their Extended Reasons. They find that that procedure was not incorporated. Their disposal of the factual question of what was said between Mr Lynes and the head teacher when he was taken on is really quite short and is contained in paragraph 8. They then go on to deal in paragraph 9 with a submission made on Mr Lynes' behalf that the rules and procedure should be incorporated because of an argument based on Sections 1-4 of the 1978 Act, dealing with the requirement that there should be a written statement of the terms and conditions of employment. Mr Lynes has helped us to understand that by telling us that in fact that was, as it were, the main plank on which Counsel on his behalf addressed this issue before the Tribunal and that, no doubt, is why the Tribunal takes some space in order to deal with it.

It is clear that they did also deal with it on the simple question of fact and evidence as to whether the terms were incorporated and found against Mr Lynes. We can see no error of law in the way in which they approach it. Nor indeed do we see any way in which an argument that they erred in law could be mounted. Mr Lynes told us that in fact at the hearing the County Council did not develop an argument against the proposition that the rules and disciplinary procedure applied, but however strongly or weakly the Council may have argued, the fact is that the Tribunal quite plainly regarded it as a point in issue, a point they had to decide and which they did decide and we can not see any way in which it could be argued that they erred in law in their approach. Since it is only points of law which entitle this Employment Appeal Tribunal to interfere, we see no way in which that point could be argued.

The second limb of Mr Lynes' appeal concerns the finding of the Industrial Tribunal on his complaint that there had been no true or adequate statement of the reasons for dismissal in accordance with Section 53. What happened about that was that the Tribunal found as a fact that the head teacher in dismissing Mr Lynes, which he did orally, told him that he [Mr Lynes] did not fit in, and when asked for an explanation of that gave two matters. One was alleged by the head teacher to be that Mr Lynes had seen some pupils looking through a glass panel at a door and waved them away; secondly the head said that some parents had complained of being pressurised by Mr Lynes into allowing their children to take extra music lessons during their holidays.

There was then a letter in January, but the reasons which were finally given were given in a letter of 22 February 1996. That lists three matters. The third, it is right to say in fairness to the County Council, was the same as the second of those which had been given by the head orally, but numbers 1 and 2 were different. The first was of complaints of staff about Mr Lynes' manner, which was said to be abrasive and at times arrogant, and the second concerned upsetting pupils. The Industrial Tribunal dealt with that in paragraphs 14 and 15 of their reasons, and having set out the facts earlier in their reasons and in paragraph 14 dealt with the law by way of a quotation from a decision of this Appeal Tribunal in the case of Harvard Securities v Younghusband

[1990] IRLR 17

, the Tribunal say in paragraph 15:

"In the present case the applicant says, and says forcefully, that he does not accept the reasons that were given. We are not to be taken as finding that the respondent's complaints against the applicant are in fact justified. The applicant himself advances no alternative reasons for his dismissal. We cannot find that the reasons given by the respondent in the letter to which I have referred were untrue or were inadequate in the sense that the respondent actually relied upon some other reasons."

Mr Lynes says that he is not concerned about the monetary compensation that the Tribunal had jurisdiction to award if they had found in his favour on this, but he is concerned about their failure to make a declaration as to what the employer's reasons were. The main consideration which, as we understand it, motivates Mr Lynes in this respect is that he fears that the decision of the Tribunal could be understood as amounting to finding that the employer's reasons, as given in the letter of February 1996, were true, in the sense that the Tribunal agrees with them.

It is quite plain, in our understanding both of the law and of the way the Tribunal applied it and of the way that the Tribunal expressed themselves, that the Tribunal was making no such finding. The truth which has to be established under Section 53 is not the truth of the complaints by the employer themselves, it is the truth that they were really the reasons that the employer had in mind. That is all that the Tribunal is addressing itself to and all that it is finding. It seems to us, that it is quite clear that that is so in the way they expressed themselves. It certainly was all they were entitled to or could consider and we wish to make it absolutely clear that on this point neither we, nor we are quite sure the Industrial Tribunal, are or were making any finding that what the employer said about Mr Lynes' conduct was factually correct. It is not for this Tribunal or the Industrial Tribunal to make a finding about that one way or the other. What the Tribunal was concerned with, and the only thing that they addressed themselves to we are quite sure, was whether the reasons which the employer, in the person effectively of the head, gave (ultimately in the letter of 22 February 1996) were those which he really believed at the time, whether justified or not. We therefore find no error of law in the Tribunal's approach to that aspect either.

We therefore have come to the conclusion that there is no arguable point of law which could go forward to a full hearing and that the appeal ought to be dismissed at this stage.