MS A J MCDONALD v PRO DELTA SYSTEMS LTD [1999] UKEAT 1326_98_2907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1326_98_2907Case No Appeal No. EAT/1326/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS A J MCDONALDAPPELLANTPRO DELTA SYSTEMS LTDRESPONDENT
Before
His Honour Judge D M LevyDate 29 July 1999
[1]APPEARANCES For the Appellant MR C GILLOTT Employment Relations Advisory Services 5 Wilderspin Close Girton Cambridge CB3 0LZ For the Respondents NEITHER PRESENT NOR REPRESENTED JUDGE LEVY: Before we deal with the merits of this appeal, there is an observation which we would make. It was clear from the outset when the IT1 and IT3 were before an Employment Tribunal, that the sum at state between the parties was likely to be £1,100 (that is a claim of £1,440 less tax, which comes down to £1,100). Notwithstanding this, there has been a hearing before a Chairman which came to this Court on a PHD and was allowed to come to a full hearing. The costs of litigating about this £1,100 must be much more than the sum at stake. In civil jurisdiction, for some years, there has been an arbritration system to deal with such claims. It may be that the President of the Employment Tribunal's would like to consider whether he would feel it appropriate to recommend a change in the law under which Employment Tribunals operate so that where there are claims for relatively small sums, litigation such as has happened in this case can be avoided. We turn now to the matter itself which is under appeal. Ms McDonald ("the Appellant) entered a contract with the Respondent dated 20 February 1998. Clause 2(1) of the terms of her contract of employment provided:
"The employment of the Employee commences or shall be deemed to have commenced on the date which is detailed in the Schedule paragraph 2 and is subject to the probation period which is detailed in the Schedule paragraph 3.1. Termination by the Employee or by the Company will be in writing and in accordance with the notice periods which are detailed in the Schedule paragraph 5, except when the Company gives such notice pursuant to paragraph 8.3 hereafter. The Company may at its discretion dispense with the period of notice referred to above by making a payment to the Employee in lieu of his salary entitlements during the said notice period."
The Schedule provides that the date of commencement of employment by the Appellant with the Company was to be 23 March 1998.[2]According to the Respondents IT3, on 22 June the Appellant attended a formal review of her performance. Then she was told her performance was unsatisfactory, was not as indicated by her at her job interview or commensurate with the salary she had negotiated. The Appellant was invited to undergo a further three month probationary period. It was thereby made known to the Appellant that this was the only basis on which the Appellant's employment could be continued. The next paragraph of the IT3 reads:
"To enable the [Appellant] to decide between leaving the Respondent's employment or continuing the probation for another three months, the [Appellant] was invited to take until the following day to consider the matter which invitation the [Appellant] accepted."
[3]The matter came before an Employment Tribunal and the Chairman was asked to determine whether she was entitled to damages for wrongful dismissal. It was heard by a Chairman alone sitting at Bury St Edmunds on 1 October 1998. The Extended Reasons for his decision dismissing the application was sent to the parties on 20 October 1998. There was an appeal from that decision to this Tribunal dated 22 October 1998. On 17 December 1998, the appeal came before a different panel under the PHD system when this Tribunal determined it should come for a full hearing. Mr Gillett addressed the Tribunal then as he has done this morning. The Respondent has not taken part in this appeal, though we have had the benefit of a Skeleton Argument of which we have been asked to take account.[4]It is perfectly clear that there was not a written notice given to the Appellant on 22 June. The argument before the Employment Tribunal seems to have concentrated on what date did the Appellant's employment end. By reference to the decision in Stewart v Chapman [1951] KB 792, the learned Chairman came to the conclusion that the first day of the period of employment was not to be included, found that the employment ended on 23 June and it therefore ended within the three month period of the contract. He rejected reference to authorities relying on the wording of section 111 of the Employment Rights Act, which had been cited to him by Mr Gillett, as not being of assistance to him in the circumstances. In that we consider he was certainly correct.[5]We pass no opinion as to whether the reliance on Stewart v Chapman was correct. What appears to have happened to us, is that the Chairman having heard from both the Appellant and the Respondent preferred the evidence of the Respondent as to what had happened on 22 and 23 June; he must therefore have come to the conclusion that on 22 June, notwithstanding that the agreement provided for written notice, no written notice was given that day, but the Appellant was told that if she wished to continue employment, that would be on the basis of a new probationary contract to start the next day.[6]If that was to happen, then the notice to which she would have been entitled under a new probationary agreement would have been one week's notice. In the circumstances, she having been paid one week's notice, we conclude that, for different reasons, the Chairman was entitled to consider that she could not make good her claim for relief for wrongful dismissal and accordingly to dismiss her claim.[7]We would thank Mr Gillett for his submissions. We think that the decision that we have reached is in accordance with Industrial Practices as those on my left and right understand it. We are sorry that there has been so much time and effort exploring a point which, in the event, does not benefit the Appellant.