Ososami v. Consumers’ Association [1998] UKEAT 563_97_1602

EAT
Ososami v. Consumers’ Association
[1998] UKEAT 563_97_1602 · 1998-02-16

JUDGE SMITH QC:

This is an appeal by the Applicant before the Industrial Tribunal, Ms Hephzibah Ososami, against a decision of an Industrial Tribunal held at London (North) on 5 March 1997, that her complaints of unfair dismissal and racial discrimination against the Respondents, the Consumers' Association, were presented out of time so that the Industrial Tribunal had no jurisdiction to consider them. Extended Reasons were sent to the parties on 11 March 1997.The sole issue on this appeal is whether the Industrial Tribunal were right to conclude that the Appellant had been dismissed, without notice, on 10 June 1996, within Section 97(1)(b) of the Employment Rights Act 1996 ; so that her complaints had been presented out of time on 3 October 1996. It was the Appellant's case before us that the Industrial Tribunal erred in law in so finding, and that they should have found that the effective date of termination of the Appellant's contract was 8 July 1996, on the basis that her contract had been terminated with four weeks' notice, under Section 97(1)(a) of the Act. There is no appeal against the Industrial Tribunal's findings that time should not be extended and we say no more about that.To understand the arguments it is necessary first to summarise the Industrial Tribunal's decision. We would like to emphasise that this is only a summary and that reference should be made to the carefully worded decision for the full findings made by the Industrial Tribunal.The Appellant had been employed as an Administrative Assistant with the Consumers' Association from 9 January 1995 until her dismissal on the grounds of conduct in June 1996. She had presented her complaints of unfair dismissal and on the grounds of racial discrimination on 3 October 1996.That complaint involved allegations of a series of acts of discrimination and harassment against her line manager. The Appellant had been the subject of disciplinary proceedings due to bad time-keeping. At the same she had invoked the grievance procedure against her line manager. Her union, MSF, had acted for her both in the disciplinary proceedings and in the grievance proceedings.On 10 June 1996 the final stage of the grievance procedure was held and the Appellant's complaint was not upheld. The final disciplinary hearing in relation to the allegation of bad time- keeping took place the same day in the evening. The Applicant was dismissed at the end of that hearing. The matter was recorded as follows:
"CB [Colin Brown Deputy Director of Research] stated that on the basis that HO had been given three previous warnings for her poor timekeeping and that she had failed to improve during the monitoring period as specified, he had no option but to dismiss HO from her post of Administrative Assistant because of her poor timekeeping. He confirmed that this was related to her conduct.
CB explained that HO was entitled to 4 weeks notice but rather than asking her to work this he confirmed that she would be paid in lieu of notice. He informed HO of her right to appeal against this decision and that this had to be made within 10 days of receiving the letter confirming the outcome of this hearing. He stated that he therefore did not want HO to report for duty the following day."By a letter from Mr Purewal to the Appellant dated 12 June 1996 the outcome of the disciplinary hearing was confirmed. The Industrial Tribunal cited a passage from that letter in paragraph 4 of its decision:
"Based on your poor time keeping we have decided to dismiss you from your post and this is related to your conduct. In reaching this decision we took into account that you have been given three previous warnings relating to your time keeping in accordance with CA's disciplinary procedures. You will be paid for four weeks in lieu of notice and therefore your last day of employment is 10 June 1996."
As the Industrial Tribunal found the Appellant did not appeal but sought to pursue her complaints through the Industrial Tribunal. The Industrial Tribunal records correspondence she had with her union MSF. Eventually she was told that MSF were not taking up her case and by a letter of 13 August the Appellant was told of the need to lodge her claim within three months less one day of the date of dismissal. Thereafter, as the Industrial Tribunal found, she contacted ACAS and the CAB but neither would help.By a letter of 30 August 1996 Mr Cole sent her a Form IT1 but the Appellant said that she did not receive it. She went to the Law Centre on 2 October and handed in the IT1 on 3 October.In paragraph 10 of their decision the Industrial Tribunal correctly summarised the relevant law. In paragraph 11, which was the crucial paragraph in their decision, the Industrial Tribunal considered and rejected an argument that the effective date of termination was the date when the notice period expired. The Industrial Tribunal held that the phraseology used at the end of the disciplinary hearing could be ambiguous but that the letter of 12 June was clear. That is to say that there was to be four weeks pay in lieu of notice but the last day of employment was 10 June 1996 which the Industrial Tribunal found to be the effective date of termination. They put it this way in paragraph 11:
"The Tribunal considered the Applicant's complaint that the effective date of termination of employment was not the date of the disciplinary hearing but the date when her notice period expired. Although at the hearing the Applicant was told that she was entitled to four weeks notice but rather than asking her to work this she would be paid in lieu of notice a phraseology which could be ambiguous the letter confirming this on 12 June was clear that she was to be paid four weeks in lieu of notice and that her last day of employment was 10 June 1996. The Tribunal was satisfied that she had been given no notice on dismissal and as such the date of termination of employment was immediate and that the money paid in lieu of notice constituted compensation for immediate dismissal and did not operate to continue the employment or delay the effective date of termination."
They then reached their conclusion as set out in paragraph 12.They then went on to consider and rejected the submission that was made to them that time should be extended.Counsel for the Appellant submitted that what was said orally at the conclusion of the disciplinary hearing on 10 June was unambiguous and he submitted that it fell squarely within Category 1 of Lord Browne-Wilkinson's very helpful illustrations as set out in Delaney v Staples [1992] ICR 483 at page 488. Alternatively, he submitted that if what was there said was ambiguous, such ambiguity was not clarified by the letter of 12 June. So, he submitted, the letter of 12 June does not amount either to a change of mind by the employers to effect summary dismissal without notice, or to a sufficiently clear statement of immediate dismissal to clarify the earlier ambiguity. He submits that an ordinary reasonable employee would not have understood the letter of 12 June as amounting either to a change of tack by the employer from dismissal by notice to summary dismissal, or as curing the ambiguity in what was said on the 10 June. He reminded us, as the Employment Appeal Tribunal, of the strong words used in Chapman v Letheby & Christopher Ltd [1981] IRLR 440 at paragraph 16 by Mr Justice Browne-Wilkinson as he then was.Counsel for the Respondent on the other hand submitted that on its proper construction the highest that it can be put against her is that there is a degree of ambiguity in what was said on 10 June but she submitted that it was equally consistent with Category 4 of Lord Browne- Wilkinson's examples in Delaney . The statement that the Appellant was not to report for duty the following day was entirely consistent with a summary dismissal and with a payment being tendered in lieu of proper notice in the sense of compensation. She submitted the matter was then put beyond doubt by two interlinked factors, namely:(a) the letter of 12 June, which, she submitted, was clearly written in terms of a summary dismissal on 10 June and(b) the evidence as to how the letter and what had been said on 10 June was actually understood by the Appellant at the time of receipt, which she submits is quite clear. She points to what the Appellant said in her IT1 and in the statement made in the attached sheets accompanying it, namely, firstly the statement in her IT1 that the dates of her employment ran from 9.1.95 to 10.6.96 and secondly at page 16 of the EAT bundle, her statement that she had been advised to approach the Law Centre though the statutory period had elapsed.We have carefully considered the helpful submissions made to us. In our judgment there is a degree of ambiguity in what was said at the conclusion of the disciplinary hearing on 10 June as the Industrial Tribunal rightly held, but we do not accept Counsel for the Appellant's submission that what was there said clearly amounted to the giving of proper notice together with a statement that the Appellant need not work out her notice. In our judgment what was said then was equally, if not more, consistent with a summary dismissal, together with a payment in lieu of proper notice. Although there is certainly a reference to an entitlement to notice, there is no clear statement which amounts to the giving of such notice, and, further, we consider the paragraph must be read against the statement in the immediately preceding paragraph of the record, where Mr Brown had stated he was dismissing the Appellant, together with the statement that she was not to report for duty the following day.We consider that the Industrial Tribunal correctly found, on the construction of what was said on 10 June in its context, that the phraseology there used could be ambiguous.We accept further, as implicitly did the Industrial Tribunal, that it was for the employers to clarify such ambiguity or such degree of ambiguity as there was in what was said on 10 June, but despite the submission ably made to us, we are satisfied that the Industrial Tribunal was right to hold that the letter of 12 June did make quite clear that the Appellant had been dismissed with immediate effect from 10 June and was being paid four weeks pay by way of compensation for immediate dismissal.In our judgement the fact that the letter states itself to be confirmatory of the disciplinary hearing, does not have the consequence that it cannot be read as clarifying the terms of the dismissal. In our judgement this is what it clearly does in paragraph 3. The first and last sentences of paragraph 3 of the letter taken together in our judgment amount to an unambiguous statement that the Appellant was being summarily dismissed with effect from 10 June, with payment in lieu of notice being made in the sense that that term is used, in example 4 of Lord Browne-Wilkinson's examples. Thus the letter states explicitly that the Appellant had been dismissed from her post and that her last day of employment was 10 June 1996. In our judgment these statements dispel any ambiguity in what was said on 10 June and make it quite clear that there had been a summary dismissal on 10 June.In our judgment that is how the letter would not only have been understood by an ordinary and reasonable employee but also we are satisfied that is how it was in fact understood by the Appellant, having regard to what she said in her IT1. Those statements were cogent evidence before the Industrial Tribunal as to what her understanding was when she received the letter of 12 June 1996, and are inconsistent with the argument put before the Industrial Tribunal that her employment did not terminate until the four week notice period had expired.The Industrial Tribunal carefully considered both the letter of 12 June and what had been said and recorded on 10 June and in our judgment they reach the correct conclusion both on legal principle and on the facts which they found. We can detect no flaw in their decision and accordingly this appeal must be dismissed.