McNally v Snap Heath Ltd [1998] UKEAT 1013_97_2306

EAT

McNally v Snap Heath Ltd

[1998] UKEAT 1013_97_2306 · 1998-06-23

JUDGE HULL QC:

This is an appeal to us by Miss Lorraine McNally. She appeals against a decision of the Industrial Tribunal held at Liverpool on 10 June 1997, the Chairman sitting alone, in which the Tribunal decided, as a preliminary point, that the application that she was making in respect of unfair dismissal (constructive dismissal as it was put) was out of time.

The decision is a short one. I refer first of all to the undoubted facts. Miss McNally was first employed by the Respondents in their restaurant business on 7 February 1986; she was one of the waitresses. She was suspended on full pay after an untoward incident on 23 August 1996 when her employers alleged that she had behaved in an insubordinate, unpleasant and insolent way. There was a disciplinary hearing which she attended before the employers on 27 September 1996. The result was, as notified to her on 30 September 1996, that she was not to be dismissed but she was given a final written warning and having been suspended with pay up to that date she was suspended without pay. After that she never returned to work.

The matter was dealt with in correspondence. There was the letter of 30 September to which I have referred, where she was told the result of the disciplinary hearing. After criticising her and setting out what had been found the letter went on:

"After careful consideration of your behaviour and insubordination, it has been decided to issue you with a Final Written Warning for Gross Misconduct. Any further acts of misconduct may lead to dismissal.

Before you return to work, we require you to acknowledge receipt of this notice by signing the duplicate herewith enclosed, upon receipt of which we can let you return to work. Your suspension continues without pay."

So now she was not to have any pay, from this moment onwards.

Miss McNally had instructed a solicitor, who wrote a defiant letter, making accusations against the employer, and an ultimatum:

"Please take this letter to be formal notice that:-

1. Our Client will not sign any purported notice which she totally disagrees with.

2. That she now regards you to be in breach of the terms of her employment.

3. That unless within the course of 7 days from the date of this letter she is reinstated on full terms as before together with restitution of all pay lost to date and your formal written apology in this matter she will be commencing Proceedings against you through either the County Court or the Industrial Tribunal as she may be advised."

In other words, to paraphrase the letter, she had done nothing wrong, she had been ill-treated, and this was her ultimatum - withdraw what you have done, apologise within seven days, or else. Of course, if she was right, the employers were fundamentally in breach of contract. They had issued a warning without any justification and much more important, had committed an undoubted breach, which went to the root of the contract, in stopping her pay.

That was her ultimatum and it met an equally defiant, though perfectly courteous, reply from the employers. They contradicted what had been said and asked how it could be that they were in breach of contract and said:

"3. There will be no written apology for acting as any reasonable employer would act. ..... so long as your client is making these unfounded allegations against us and has retracted the contents of the Final Written Warning then the suspension will continue until matters have been resolved .....

So that was saying, so far as the employers were concerned, "we do not accept your letter in any way and we are not going to provide an apology or comply with the other terms of your letter". The position at that stage, so far as it is recorded in writing, was that Miss McNally, rightly or wrongly, regarded her employers as being in breach of contract on a basis which went to the root of the contract, and had issued an ultimatum and had been met, to quote Shakespeare, by the "countercheck quarrelsome". So at that point, even if she had not already elected to treat the contract as at an end, certainly she was sticking to the terms of her solicitor's letter to the employers and it would look very much as if her election then became irrevocable.

Miss McNally did not register her IT1 complaining about that dismissal until 2 April and so it came before the Industrial Tribunal. We do not know exactly what happened in front of the Industrial Tribunal, it appears that Counsel was employed by the Respondents, who attended. Certainly it appears that Miss McNally was heard by the Chairman. It may be that other evidence was called. We do not know exactly what letters were put before the Tribunal. It appears that the letters which I have read were attached to the IT1 and therefore were before the Tribunal. The Chairman dealt with the matter like this. He said that the Tribunal was satisfied that this application was brought more than three months after the date of alleged dismissal and was therefore out of time and the Tribunal had no jurisdiction. Then he gave his reasons, he said:

"4. The application by the applicant was lodged at the Tribunal Offices on 2 April 1997. It is dated the 18 March 1997. The applicant alleged that she had been constructively dismissed by the respondent and gave 28 January 1997 as the date upon which her employment ceased. Attached to the application were copies of correspondence between the applicant's Solicitors and the respondents from which it is clear that the applicant was not directly dismissed including a letter dated 14 October 1996 in which the Solicitors threatened the respondents with proceedings either through the County Court or the Industrial Tribunals; this letter followed a letter dated 30 September 1996 to the applicant from the respondent giving a final written warning for gross misconduct. The applicant conceded that she had not returned to work following the letter of 30 September 1996 and that if she had been constructively dismissed her employment ceased before Christmas 1996.

5. Having considered the representations made by the applicant and by Counsel the Tribunal was satisfied

(a) That there was no direct dismissal

(b) That if there were a constructive dismissal it must on the basis of the applicant's own application to the Tribunal and her admissions to the Tribunal have taken place before Christmas 1996."

Therefore it was out of time, outside the three months allowed by Section 111 of the Employment Rights Act 1996 .

There are a number of criticisms made by Mr Benson of this decision. His fundamental point is this: that the learned Chairman should have decided exactly what the date was; the effective date of termination. He says it is essential to arrive at that date before considering such matters as whether it was reasonably practicable for the time limit of three months to be complied with.

We certainly accept that in general an Industrial Tribunal will wish to find the exact date of termination of the contract, but in the present case it is difficult for the Tribunal to say what the exact date is. Was it the date of the ultimatum or seven days thereafter? Was it perhaps within a reasonable time after the employers' "countercheck quarrelsome"; perhaps seven days after that? There are a number of possible dates and of course it is idle for us to speculate because the Chairman might have heard enough in the way of oral evidence to satisfy himself that neither of those dates appeared to be appropriate. We do not know. We do not know what admissions Miss McNally made to him.

It seems to us that, although on occasions it may be essential for a Tribunal to find the exact date, it cannot be stated affirmatively that it is a duty in law always to find the exact date. To take perhaps an absurd example, some employee, perhaps an eccentric person, might come along and say "two or three years ago I was sacked. I have been thinking about it and I did not realise what the law was and now I should like to say it was not reasonably practicable for me to act sooner. It is very difficult for me to remember". It might very well be impossible for anybody to remember the actual date on which (say) oral notice was given or there was a quarrel and a summary departure, whatever it might be. In such a case the Tribunal would obviously be entitled to say "it appears to us that the dismissal was at least two years ago and there is no occasion to extend time".

Here there is a second criticism which is made by Mr Benson, perfectly sensible if we may say so, that in the circumstances (he says) it was incumbent upon the Industrial Tribunal to consider whether it was reasonably practicable to present the complaint within three months. In those circumstances again the Tribunal was obliged to arrive at the exact date. But such a contention would be, it seems to us, quite impossible to maintain. This lady was at all times advised by a solicitor who is not merely, so to speak, advising her, but writing highly competent letters on her behalf. In those circumstances to say that it was not reasonably practicable for Miss McNally to comply with the time limits seems incredible and not a matter which the Tribunal would normally be expected to consider, unless it was expressly raised.

Although it might be said that this decision is not as precise as one would wish, nonetheless, it is a perfectly proper decision which decided the matter which the Chairman had to decide; was this, on any conceivable view, an application which was made in time? Having ascertained the facts in the way that I have mentioned and to the extent that I have mentioned, the Chairman thought it enough to say that it was clear that the effective date of termination was before Christmas and in those circumstances the application was undoubtedly out of time.

It seems to us, therefore, there being no invariable principles such as Mr Benson has urged upon us, that there is no fairly arguable ground of appeal. The appeal, and this was sufficiently clear from the way Mr Benson was putting it, in effect involved re-trying the case; to look at all the evidence and see what the Chairman had to work upon and what was the foundation of his decision. That is not our function. We cannot find any overt error of law in the two important respects urged upon us by Mr Benson and therefore this appeal falls to be dismissed at this stage.