Moss v Bass Taverns Ltd [1997] UKEAT 159_97_2511

EAT
Moss v Bass Taverns Ltd
[1997] UKEAT 159_97_2511 · 1997-11-25

JUDGE D PUGSLEY :

Those who held the view that Industrial Tribunals would provide an efficient, economic and expeditious way of resolving disputes and would see that as their prime purpose would find it somewhat disillusioning to see the way in which legalism with its paralysing effect, has taken hold.This is a very simple dispute and this is the third hearing and, so far the Tribunal have not been placed in a position of making a single finding of fact about what actually happened.The Applicant, according to the statement she made in her Originating Application, was a barmaid. A man called Bell, according to her, paid for a drink for her fiancé, Matthew Waring. Matthew did not wish to take the drink there and then so it was left "in the pump". She says it is a common practice which she has done before and the practice has never been queried.Later on she drew a pint for her fiancé, but he also asked for a packet of crisps, so she charged him for the crisps and rang 28 pence into the till. This was witnessed by the landlord, Mr Wood, who asked why he had only been charged 28 pence when he had a pint as well. She explained the situation that an earlier pint had been paid for by Mr Bell. She says that nothing else was said on that evening but on the following day she was sacked. An Originating Application was presented on 16 July 1997.The matter came before a Chairman sitting alone and the issue in the decision, promulgated on 10 December 1996, the hearing having taken place on 4 December, was whether the application was in time.It was conceded, on behalf of the Applicant, that if the effective date of termination was 16 April 1996 the application received on 16 July 1996 was out of time, and it was not contended that it was not reasonably practicable for the complaint to be presented before the end of that three month period.However, a submission was made that, on the particular facts of this case, the period of employment was extended into September or beyond. In order to appreciate why that should be the case, it is necessary to briefly refer to events subsequent to the dismissal on 16 April 1996.The Applicant exercised her right of appeal. That appeal was due to be held at the end of April but was, we are told and have no reason to in any way query it, a dispute which we are told was acrimonious, between the Solicitors appearing for the Applicant and the Respondents, as to whether or not the Solicitors might attend the disciplinary appeal. Nothing of that features in the case papers we have, and we have no reason to believe that that was not the reason as to why it was that, it was not until 9 September that the appeal was heard. The hearing record of that decision quoted in paragraph 3(e) records the Retail Business Manager, a Mr Bussell saying as follows:
" 'I am prepared to reinstate (the applicant) in your position at The Rake. I will reduce the dismissal to a final written warning for incorrect till/stock procedure .. . You will be reinstated in your position as of next Sunday'. The applicant replied 'I will have to speak to my Solicitor first about this - he said to go and see him straight after if you offered me reinstatement'."
In the event the Applicant did not accept the offer of reinstatement. She had received a letter on 10 September, in which the Respondent said they were going to pay her, but only up to the original date of the appeal, namely 29 April 1997, because they did not regard themselves as responsible for the delay that had followed hitherto.On 27 September 1996 the Appellant rejected the Respondent's offer of reinstatement. We have been referred to the disciplinary rules which were incorporated into the contract of employment. The contract includes a power to dismiss and issue a final written warning and in relation to appeals it states at paragraph 2(4):
"The employee may appeal in writing to the Retail [rather than is stated in the skeleton argument Retial] Business Manager against a written warning or dismissal, within 7 working days. The decision at this stage will be final."
Before the Industrial Tribunal the contention was made that the Appellant's effective date of termination was for a period after the appeal hearing, and she had not been dismissed by virtue of the appeal being allowed and reinstatement taking place at a period before 10 September. It seems common ground here on both sides that the proper date, if this is the issue, is 27 September when she turned it down.For the Respondents it was contended that only an offer of reinstatement was made to the Applicant. The offer was never accepted and she was therefore never reinstated.It is to be noted that the Industrial Tribunal found the effective date of termination to be 16 April and justified this finding by relying on the Appellant's own statement in her IT1 that the effective date of termination was 16 April, her further statement in box 12 of the IT1 relating to summary dismissal, and it claimed to find further support from Section 145 of the Employment Rights Act 1996 . If we may say so, that is not a very helpful section since it does not deal with unfair dismissal, but only with redundancy and we understand the correct section is Section 97(1)(1).Now quite simply before us Mr Gorton, who did not appear below, has said there is one issue in this appeal. Does the effect of the company reinstating the Applicant mean that the effective date of termination was from the date of the appeal or thereafter? He accepts that (a) if his client had not appealed or, if that appeal had been unsuccessful, the effective date of termination would remain as 16 April.We have been referred to the case of British Broadcasting Corporation v Beckett [1983] IRLR 43. That case does not appear to have been cited to the Industrial Tribunal, although they were referred to the earlier Court of Appeal decision of J Sainsbury Ltd v Savage AC Reports at page 1, a decision which, if one may say so, foreshadows the later Employment Appeal Tribunal decision of BBC v Beckett.The decision of the Employment Appeal Tribunal in BBC v Beckett is one which has been cited a number of times, but we are told by Counsel and Mr Davies, both of whom are experienced in this area of law, the only occasion in which it has been cited is on a point with which we are not immediately concerned, namely whether the imposition of punishment, which is grossly out of proportion to the offence, can amount to a repudiation of the contract of service.The issue with which we are concerned is a matter which has, we are told, never been the subject of any reference by other cases. It has neither been affirmed, questioned, queried or commented upon. We do not intend to go through the facts of the decision in great detail. The position is that Mr Beckett on the 24th or thereabouts of October 1979, was dismissed with a period of 12 weeks' notice to run from that date. What we do know is that both representatives in this case agree that the decision does not reveal whether or not that was a dismissal, which was to take effect immediately, in the sense that he was not required to work the 12 weeks' notice, or whether he was required to work the notice.There was a sort of appeal by a letter dated 2 November 1979 and thereafter a further appeal to the Director of Personnel. That appeal was heard on 11 February 1980. During the course of the letter that he wrote on 5 March to Mr Beckett, the Director of Personnel said this:
"However, as this was your first recorded offence of this sort, I have decided to give you a final chance to regain the trust of the BBC and do a good job of work. My decision therefore is that, as your conduct was sufficiently serious to preclude you from continuing to work in the Television Construction Department, you should be removed from your present post of scenic carpenter and offered the job of building maintenance carpenter, grade CR1 .... [it then set out the place and payment]. "
It then went on to say:
" ...this appointment would be on a trial basis, initially for a three month period. ...
Please let me know in writing by Friday, 14 March whether or not you accept this offer. If you refuse, or if I do not hear from you by that date, I will take it that you have decided to determine your BBC employment."That letter evoked the response from Mr Beckett by a letter on 7 March 1980 in which he said he rejected he had been guilty of a serious breach.On 17 March there was another letter and eventually the position was that he was written to and his employment came to an end when he was written to on 1 April 1980 and it was said:

"... I confirm you last day of service with the BBC was 21.3.80."

An application in that case was made to the Tribunal on 17 June 1990.At paragraph 15 of the decision Neill J states as follows:
"It is common ground that if Mr Beckett's appeal had been wholly unsuccessful his dismissal would have taken effect in accordance with the terms of the letter of 24 October: cf J Sainsbury Ltd v Savage [1980] IRLR 109. Mr Beckett's appeal, however, was not wholly unsuccessful: Mr Bett made him the offer contained in the letter of 5 March ... . Mr Reynold submitted on behalf of Mr Beckett that the effect of the letter of 5 March was that the original dismissal stood but that Mr Beckett was offered alternative employment which he was entitled to refuse.
Mr Brindle on the other hand submitted on behalf of the BBC that Mr Bett's decision amounted to the imposition of an alternative penalty and constituted a downgrading in accordance with the disciplinary procedures of the BBC.In support of his submission that the original dismissal remained in force, Mr Reynold drew attention to the rule that a notice cannot be withdrawn unilaterally (Harris and Russell Ltd v Slingsby [1973] IRLR 221) and to the terms of the letter of 5.3.80. He placed particular reliance on the facts that the letter referred to the 'offer' of a job and that the appointment as a maintenance carpenter was to be on a trial basis. The introduction of a trial period, said Mr Reynold, was inconsistent with the continuance of the former employment, and he pointed to the terms of the letter which was considered by the Court of Appeal in Marriott v Oxford Co-operative Society (1970) 1 QB 186 at 190."The Tribunal went on to say this, at paragraph 18:
"We see the force of Mr Reynold's submission, but we are unable to accept it. It is necessary to bear in mind the context in which Mr Bett wrote his letter of 5 March. Mr Beckett had appealed in accordance with an agreed system of appeals. The disciplinary procedures of the BBC laid down certain prescribed penalties for misconduct, and these penalties included summary dismissal, dismissal with contractual notice and downgrading ... . We consider that although Mr Bett did not refer to downgrading in either of his two letters the only sensible construction to be put on his letter of 5 March is that he was offering Mr Beckett the chance to continue in his employment with the BBC but in a different post. It follows that in our view Mr Beckett's employment came to an end in March 1980 when he rejected the opportunity to continue this employment with the BBC."
It is against that background that the Appellant says that having regard to that decision that the effective date of termination only came about when the Applicant in this case rejected the offer of reinstatement.With great respect to the Chairman, we do not find the basis upon which he decided it, which is set out at paragraph 6, namely the Applicant's view of the matter when it was put in the Originating Application, of any great assistance. What is the effective date of employment is a matter of law. We do not consider the Applicant or her Solicitors' perception of that matter of law should, in any way, have been given the weight it was in his decision.Before us Mr Davies has perfectly properly accepted that the case of BBC v Beckett is one that we have to consider. He has invited us to draw certain conclusions from which he invites us to say there are certain distinctions that can be drawn. He notes that the original decision of Beckett does not make it clear whether or not Mr Beckett, through those long months, continued at work or not. He points out that in this case, unlike Beckett, the Appellant was offered reinstatement in a former position rather than downgraded. He points out that in this case the Appellant was never paid for the period after which the employers took the view that the delay was due to the attitude adopted by his Solicitor, rather than to any default on their part.Mr Davies has no way weakened his case by realistically conceding that these are issues which cannot clearly be said to distinguish the case of BBC v Beckett . What however, he does say with some considerable force, is simply this. That in industrial law one has to beware of giving reported cases a significance that it was never intended they should have: that the Beckett case, he says, applies on its own particular facts and should be viewed on the facts which arose in that case and should not be used as a precedent with a rather different factual matrix that pertains in this case.The position simply is this. That the object of civil law is to ensure that the person who had been the victim of a civil wrong is returned to a position that they would be but for that default on the other party. Clearly that cannot operate in many areas of litigation. No court of law can return to someone who suffered horrific injuries in a motor accident or an accident at work, the health and vitality they had prior to the accident. All the law can do is to seek to find the currency of money to compensate him for that loss.But in the area of employment law it is possible to seek to restore a person to the original position. It is sometimes forgotten that under the Act the primary remedy is one of reinstatement and that Tribunals are directed to ask people whether they wish to be reinstated. It is possible to say, in effect, "look we can totally mitigate the consequences of the decision to dismiss by reinstating you to your former position with no loss of rights of any sort".In the world of industrial relations both industrial members have no problem at all with the concept of reinstatement. I do not shy from saying it is their considered view that with co-operation on both parts this matter could have been resolved months ago, without expense, by a Branch Secretary and an Assistant Personnel Manager.Reinstatement simply means putting a person back to the position they were and expunging the decision to dismiss. Having regard to the context the industrial members have no problem at all with the concept of saying, reinstatement means putting a person back to their original position and that means that, therefore, they are given continuity of service back to the original time and treated in all respects as if they had never been dismissed. They follow the reasoning of the BBC v Beckett case and say quite simply, in their view this was an error of law. In fairness to the Industrial Tribunal they never had their attention drawn to BBC v Beckett , which decided that the effective date of termination was after the appeal decision and when the Applicant/Appellant decided she was not prepared to accept the terms upon which she was to be reinstated. Therefore, it is their view, with which I concur, as a matter of industrial relations reality, the decision of BBC v Beckett is not only correct in the law, but makes sense in terms of the practicalities of industrial relations and that the effective date of termination is after the appeal was heard and after the appeal was allowed. It is common ground and has not been argued before us that the appropriate date is 27 September.Before us an issue has been raised which is that, if that is our finding then the Originating Application received on 16 July was premature. It has also been pointed out to us that there was a further Originating Application received by the Industrial Tribunal, according to the knowledge that we have, on 4 December, but that second Originating Application does not appear to have had a claim as the original one encapsulating a claim for breach of contract.It has been agreed between the parties (and we thoroughly agree) that those issues are matters for the Industrial Tribunal to determine, not for us, and that those arguments may be raised, if it is thought appropriate, at a later stage. Our decision is to allow this appeal and to decide that the effective date of termination was 27 September. The case should now be heard by a differently constituted Tribunal which should deal with such issues as are raised concerning the status of, or if necessary, the amendment of, either of the two Originating Applications.