MRS K DOWRICK v THE CATS PROTECTION LEAGUE [1999] UKEAT 137_99_1205

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 137_99_1205Case No Appeal No. EAT/137/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS K DOWRICKAPPELLANTTHE CATS PROTECTION LEAGUERESPONDENT
Before
His Honour Judge Peter ClarkLord Davies of CoityDate 12 May 1999
[1]APPEARANCES For the Appellant MR C DOWRICK (REPRESENTATIVE) JUDGE PETER CLARK: The Appellant, Mrs Dowrick commenced employment with the Respondent on 1st September 1997. On 29th July 1998 she was interviewed by the Chief Executive, Mr Conway. During that meeting, according to a memorandum prepared by the Appellant and sent to the Personnel Officer, Mrs Gorridge on 4th August 1998, she was told at the meeting that she was being sacked as unsuitable for the post which she held of Regional 4 Director. She was handed a letter dated 29th July and signed by Mr Conway which began:
"Dear Karen, This is to confirm that your employment as Regional 4 Director for the Cats Protection League is ended with immediate effect."
The letter goes on to say that: Susan Gorridge will confirm monies, holiday entitlement and lieu days due to you and arrangements should be made to collect your car and CPL equipment tomorrow." By a further letter of the same date signed by Mrs Gorridge, the Appellant was told this:
"I am writing further to your discussions with Derek Conway regarding the termination of your employment with the Cats Protection League. As you will not be required to work your notice period, the following monies are due to you."
And then are set out the following payments: "4 weeks pay in lieu of notice Holiday entitlement for 1998, a total of 5 days outstanding Lieu days outstanding, 15 days Compensation for the loss of her company vehicle £330. Her complaint of breach of contract, for written reasons for dismissal and for wrongful dismissal came before a Chairman, Mr J Rosser, sitting alone at the Bury-St-Edmunds ET on 15th October 1998. Leave was given at the hearing to the Appellant to add a claim of unfair dismissal. The Chairman found in extended reasons dated 6th November 1998: that she had been employed for less than one year. Accordingly, both the claims of unfair dismissal and for written reasons for dismissal under the Employment Rights Act 1996 were dismissed. See Davidson -v- City Electrical Factors Ltd [1998] ICR 443 where the Scottish EAT held that in cases where a complaint of unfair dismissal was made by an Applicant with between 1 and 2 years service, the unfair dismissal claim should be adjourned pending the outcome of the Seymour Smith litigation. The current position there is that the House of Lords' decision is awaited in that case, following the ECJ ruling reported at (1999) IRLR 253 .[2]That she was not wrongfully dismissed. The Chairman found that the sole reason for dismissal related to her suitability and that she received all contractual payments to which she was entitled. In this appeal, presented by her husband, Mr Dowrick, who appeared on her behalf below, it is submitted that the Appellant had completed more than 12 months qualifying service entitling her to have her unfair dismissal claim adjourned. The argument is put in three ways. First, attention is drawn to the wording of Mrs Gorridge's letter of 29th July in which she says that the Appellant will not be required to work her notice period. It is submitted before us, as it was before the Chairman below, that on the authority of Adams -v- GKN Sankey Ltd [1980] IRLR 415, the effect of Mrs Gorridge's letter is to extend the effective date of termination by 4 weeks from 29th July 1998. We do not accept that submission. It seems to us that it was made abundantly clear to the Appellant, and more to the point, she understood it to be the case, judging by her own memorandum of 4th August, that her employment was terminated with immediate effect, as Mr Conway's letter of that date, made clear. Accordingly, we are satisfied that the Chairman was entitled to conclude that the effective date of termination was the 29th July, if that was his finding. However, even assuming that the effective date of termination was extended by 4 weeks to 26th August 1998, that would still not take the Appellant beyond the 12 month threshold. That brings us to Mr Dowrick's second submission. He argues that the holidays outstanding, that is 5 days, and the outstanding lieu days totalling 15 days, fell to be added to the end of the notice period. We reject that submission. We have been referred to no authority and know of no authority for the proposition that outstanding holidays or lieu days fall to be added to the date of expiry of the notice where notice is given, or where there is summary dismissal to the date on which that dismissal is effected. Further, we think that view is consistent with the Contract of Employment made between the parties in this case, which provides that so far as holidays are concerned, "If you leave the League's employment you will receive pay for any accrued holiday outstanding and untaken at the effective date of the termination of your contract. Please note that you may be required to take any outstanding holiday entitlement reckoned by the League during any period of notice and should you fail to do so you will lose any entitlement to holiday pay in lieu." In fact, the Respondent did not require her to take her 5 days holiday entitlement during any notional notice period if notice period there was. She was simply paid in lieu of her outstanding holiday entitlement. Similarly, with the accrued lieu days. That was resolved by a payment to represent those 15 days. It therefore follows that even if the Appellant is right in submitting that the effective date of termination was extended by 4 weeks from 29th July, nevertheless, she is not entitled to take into account the following days as lieu days to extend the period beyond the 26th August. The third and final point taken is that the Respondent failed to implement the disciplinary procedure provided for in the Contract of Employment. That may or may not be correct. However, in our judgment, any failure to implement the disciplinary procedure cannot extend the effective date of termination. In these circumstances, we have concluded that the Chairman was correct in finding that the Appellant had not completed 12 months continuous service and in those circumstances he was entitled to and bound to dismiss the complaint of unfair dismissal. Mr Dowrick has sought to address us on the merits of that claim but in the circumstances, that issue becomes immaterial, there being no jurisdiction to entertain the claim. Accordingly, the appeal must be dismissed.