McEwen v Brentwood & Ongar Conservative Association [1997] UKEAT 399_96_1404

EAT
McEwen v Brentwood & Ongar Conservative Association
[1997] UKEAT 399_96_1404 · 1997-04-14
MR JUSTICE MORISON (PRESIDENT) : On 12th September 1995 this appellant, Margaret Ann McEwen, presented an application to an Industrial Tribunal alleging redundancy pay, unfair dismissal and harassment. It was her contention in her IT1 that she had been employed by the employers, the Brentwood and Ongar Conservative Association ["the Association"], from August 1989 until 22nd June 1995.The employers, the Association, filed a Notice of Appearance, and contested the dates given by the applicant in her IT1 relating to her employment. It was their view that her employment began on 23rd December 1993 and ended on 22nd June 1995. It was therefore common ground between them that her employment had ended on 22nd June 1995 but it was in dispute as to when her employment commenced. If the Association were correct, she would not have had the requisite two year qualifying period for bringing a complaint of unfair dismissal or making a complaint alleging non-payment of redundancy. That is, subject to any decision of the European Court which is eagerly awaited but not anticipated in the very near future, in the case of Seymour-Smith .The issue before the Industrial Tribunal therefore was: but for Seymour-Smith , was there the requisite two year period of employment? The case on harassment was at the applicant's own request removed from her originating application and on withdrawal was dismissed by the tribunal. They therefore had to concentrate on the question as to when her employment with the Association began.I turn now to the decision of the Industrial Tribunal and summarise the way they approached the case.They said that the applicant commenced employment with the Association on 1st April 1991 as Secretary and Agent. Her notice period was one month on either side. On 18th October 1993 she wrote to the Chairman of the Association as follows:
"Accordingly, I have reluctantly decided to resign my appointment as Agent and Secretary to the Brentwood and Ongar Conservative Association."
It will be appreciated at once by those who are familiar with the statutory definition of dismissal which relates the effective date of termination to the contractual periods, that such a statement is capable of being ambiguous. It could mean "I am giving notice that I am, in accordance with my contract, resigning" or "I am going to cease to work for you immediately from this date". (Impliedly "I am not going to give due notice").The tribunal referred to a meeting which took place on 22nd October 1993 between Mr Parrish the Chairman of the Association and the applicant, and their finding was this:
"He said that on 22 October 1993 he agreed, in discussion with the Applicant, that she should terminate her employment forthwith."
That also is statement which is capable of some ambiguity. It could mean that she was going to cease to be employed forthwith and was going to be paid her notice monies in lieu. It could mean that that was the effective date of termination of her employment. It could mean that she was going to cease to work from that moment, but that her contract of employment would continue on and she would be paid in accordance with it until it came to an end treating her letter as though it was a notice of termination.The tribunal went on to note that following that meeting thereafter the applicant did no work, handed over her keys to the premises where the locks were changed, but continued to receive her contractual salary during the notice period up to and including 19th November 1993.The tribunal referred to an Executive Council meeting which took place on 20th December 1993 and concluded that she resumed her employment on that date. They say this:
"On 20 December 1993, following an Executive Council meeting at which a vote was taken, it was agreed the Applicant would be the subject of "an immediate resumption of duties". We find that the Applicant did indeed commence her work immediately which the Applicant herself records in the schedule she has provided."
On this basis, the Industrial Tribunal had to concentrate on the issue which was before them. S.212(1) of the Employment Rights Act 1996 provides as follows:
"Any week during the whole or part of which an employee's relations with his employer are governed by a contract of employment counts in computing the employee's period of employment."
So the first question they had to direct their attention to was whether after 22nd October 1993 any week between then and 20th December 1993 was a week governed by a contract of employment.

(c) there was an absence from work in circumstances such that:

"by arrangement or custom, she is regarded as continuing in the employment of her employer for any purpose."
It was the applicant's case as set out in her originating application to the Industrial Tribunal that her resignation in effect never took effect. I read from paragraph 12(2):
"However, this resignation never took effect as I continued to work for the Association, albeit from home, and to be paid by it, albeit a smaller amount. Following a resolution of the Executive Council of the Association to that effect, I resumed by full duties on the 23rd December 1993. In the circumstances there was no break in the continuity of my employment between 1991 and 1995."
We have little doubt that that was the thrust of the dispute between the parties before the Industrial Tribunal. Was she, despite her resignation, effectively still remaining in the employment of the Association?The Industrial Tribunal considered this question, and weighed the countervailing arguments set out in paragraphs 12 and 14 of their decision. There were two factors which weighed with them, in addition to their assessment of the witnesses. They had formed the view that wherever there was a conflict of evidence they preferred the evidence given on behalf of the Association rather than the evidence given by the applicant. It was their clear view that there was a break in the continuity of her employment between 22nd October 1993 and 20th November 1993, and the two additional matters on which they relied were firstly, that the applicant herself wrote a memorandum dated 20th March 1995 in which she said:
"I said those months were when I ceased to be employed by the Association and that I was willing to pay it myself if they would accept the payment."
That was a memorandum in relation to pension matters. The second point on which they particularly paid attention was the payment which was made to the applicant on 31st December 1993, that is for a period of employment from 20th December on the Association's case to 31st December 1993. The rival contentions of the parties were that the payment was exactly referable to the amount of her annual salary divided up amongst the days between 20th December and 31st December on the one hand; or the applicant's contention that she had been paid an hourly rate for doing part-time work for the Association throughout the period after she had resigned. The tribunal unhesitatingly preferred the Association's account of that payment which was made, and that therefore reinforced their view that she did not just simply continue in employment but effectively started again as from 20th December.In reaching their judgment they had regard to two compelling arguments which were raised on behalf of the employee. She had pointed out, quite rightly, that she was not given a new contract of employment as at 20th December 1993, which was consistent with the Association having accepted her withdrawal of her resignation so that the old contract effectively continued to run. Secondly, she had never been given a P45. They weighed those mattes and concluded that neither of them compelled them to a different conclusion. It was essentially an organisation of voluntary officers of whom the applicant was, so to speak, administratively in charge; and, as has been pointed out to us in argument, if anybody was going to be issuing P45s it would normally have been the responsibility of the applicant herself. They took those matters into account and nonetheless remained firmly of the view that there was a break in the contract of employment because there had been a resignation, a termination of employment, followed by a period during which she had not been doing, as she had alleged, part-time work for the Association, so there was truly a break in her continuity. Thus, they were of the view that there were weeks during the period between 22nd October and 20th December which were not governed by any contract of employment. Therefore did not count and therefore she did not have the requisite two year qualifying period.The appeal has been brought before us, and, as we understand it, effectively there are two submissions which are made. The first relates to s.212(1) and goes in this way. The contract of employment did not terminate until 19th November 1993, that is because despite the conversation which took place with Mr Parrish, she was not being removed from her employment as was evidenced by the continuing payment up until 19th November; not, it is to be noted, a payment without the deduction of tax and the usual reductions, but with those deductions which is consistent and consistent only with the employee having remained in employment, rather than being paid in lieu of notice.Secondly, during that period the employers through an Association meeting on 4th November, offered to keep open her position for one month from that date. That offer had the effect of extending her contract beyond 19th November at least until 4th December. The terms of the minute of the meeting of the Association of 4th November, taking into account the amendment which was subsequently made, reads as follows:
"A full wide ranging and comprehensive discussion took place and it was proposed by K. Brown and seconded by R. Martin that the meeting accept the G.P. Committee's recommendation regarding the Agent but that if she wished to reconsider her position within the next month she could return and the selection procedure would be halted. This was carried overwhelmingly on a vote being taken."
The third proposition which is made in support of this argument is that during that one month period, but after 19th November, the offer which is referred in that meeting of 4th November was unequivocally accepted by the applicant on 27th November 1993 and/or 29th November 1993. Taking the earlier letter first, it is a letter which was sent to all members of the Association saying:
"Dear Member,
As the adjourned Meeting of 4th November 1993 has not been reconvened, I wanted all members to know my reply to the constructive proposal made by Alan Braid - that we return to the Status Quo before the dispute which led to my reluctant resignation.I am willing to accept this proposal on the understanding that the professional status of the Association's appointed Agent is fully recognised and accepted in the future."Thus, because she had accepted the offer which was made on 4th November, she then had in existence a contract of employment which took effect as from 20th December, and thus throughout the whole of the period from 22nd October to 20th December every week was a week in which she had a contract of employment with her employers falling within s.212(1) of the Act.The second main argument was that under subsection (3) the fact that the parties were in discussion as to the terms on which she would be resuming or returning to work, it is to be implied that there was some kind of arrangement or custom which fell within subsection (3)(c) of s.212, under which she was to be regarded as continuing in the employment of the Association.On behalf of the Association, Counsel made the point that we are a tribunal of law and not of fact, that it is not for us to go behind the findings made the Industrial Tribunal, and our attention was properly drawn to the various passages in the decision which showed that the tribunal have effectively considered the matter with great care.It seems to us that the appeal in this case, is, if we might say so bluntly, reasonably hopeless.We look at the first argument which was made on the appellant's behalf. We are prepared to accept that it is arguable on the basis of the language which was used that what happened on 18th October and at the meeting of 22nd October was no more than bringing to an end the working arrangement between the parties, but leaving the contract to continue to run until it expired after the month's notice. In other words, that there was or may have been a contract of employment in existence up until 19th November 1993. The Industrial Tribunal, it should be noted, were clearly of the view that despite the fact that payment continued to be made, the effective date of termination was 22nd October 1993, that is the first sentence of paragraph 14 of the decision.We recognise that Industrial Tribunals are the people who must decide the facts and that their decision will not reflect all the points which they have born in mind in arriving at their decision, and they cannot be expected to set out everything. Indeed, there will be what might be called a penumbra of matters which they will have discussed and taken into account which are difficult if not impossible to articulate in any decision given by a court of law. In normal circumstances we would not have been prepared to listen to any argument to the effect that the effective date of termination was later than 22nd October, but as I say, I accept that it would have been reasonably arguable that the contract continued until 19th November; and for the purpose of considering the appellant's argument on this appeal, I make that assumption in their favour.But the second point seems to us to be wholly and completely unarguable. That is that the contract of employment was kept alive for a period of one month from 4th November 1993, in other words it extended the contractual arrangements from 19th November until 4th December. The reason why we have arrived at that conclusion is because there is nothing in the documentation to suggest that that was being offered, or that that was being discussed or was in the mind of Association. Indeed, we think it perfectly clear what was being said on 4th November, namely that they would not advertise for a new Agent at least until 4th December to give her an opportunity to decide whether or not she wanted to resume her employment. That did not have the effect of extending her existing contract, and we can see no ground whatever for a submission that it had that effect in law.The third element, as I have indicated, of this argument, is that during the period that offer was accepted. It seems to us manifestly clear that the offer was not accepted. There were two matters of qualification in the 'letter of acceptance'. The first was that there should be a return to the status quo; and the second in amplification of that, that the professional status of the Association's appointed Agent is fully recognised and accepted in the future. Bearing in mind the nature of disputes of the sort that this tribunal is fully familiar with, we have little doubt but that those two conditions were of importance. It seems to us that there is no basis in law for suggesting that the 27th November 1993 letter constituted an acceptance of the offer which was made on 4th November. It was not. It was, in our view at best, a counter offer which was made to the Association. Accordingly, it seems to us that in any event, the argument is wholly unsound. Furthermore, we are not satisfied that it is an argument which had been addressed to the tribunal below. We do not accept the submission that just because a person is unrepresented at the tribunal they should be given the opportunity before the Employment Appeal Tribunal of arguing a point which was not previously argued. There is a public interest in having finality to litigation. This applicant was in an important position in the Association. We have no doubt at all that she would have been perfectly capable of formulating a case that she had been given an offer which she had accepted on 27th November. That was not the case which she was advancing in her IT1, even though the Industrial Tribunal had access to the letters to which we have referred. In any event for the reasons which we have given, we are quite satisfied that had this argument been put before the Industrial Tribunal, they would have rejected it and been entitled to do so, indeed obliged to do so, for the reasons which I have attempted to give.In relation to the second argument, that is as to s.212(3)(c), it seems to us that that point is manifestly unarguable. The proposition that when parties are discussing the terms on which an employee is or might come back to work for them, there is some kind of implied arrangement or custom that during those negotiations the employee is to be regarded as continuing in employment, is unsound in law and unsupported by any authority at all. It seems to us that the subsection concerned is dealing with other types of arrangements or customs which can develop in the workplace as can be seen from the authorities which bear on that matter. Again, we are not sure if this point was fully developed before the Industrial Tribunal. We are quite content to deal with it. It raises no arguable point of law.That being so, we are satisfied that the points which have been raised on this appeal with skill, if we might say so, on the behalf of the appellant by Ms Warren, are nonetheless ill-founded and therefore the appeal must be dismissed.MR JUSTICE MORISON : An application for costs has been made to us by the respondents on the grounds that this appeal was run unreasonably. We have a procedure in the Employment Appeal Tribunal for identifying those appeals which would appear to us to be hopeless. Although on analysis it seemed to us that the appeal in this case was hopeless, that procedure was not used. We have regard to all the circumstances of the case. The way in which the tribunal decision was given and the formulation of the arguments in this case by both parties and to the background. Having regard to all those matters, we are not persuaded that we ought to exercise our discretion to order costs in this case.