MILLAT HOUSING ASSOCIATION v MR I NIJHAR [1999] UKEAT 581_97_0810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 581_97_0810Case No Appeal No. EAT/581/97Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MILLAT HOUSING ASSOCIATIONAPPELLANTMR I NIJHARRESPONDENT
Before
His Honour Judge Peter Clark Mr W Morris Mr R N StrakerDate 8 October 1999
[1]APPEARANCES For the Appellants M S SHEIKH (Representative) JUDGE PETER CLARK : The position in this case is as follows. On 11th February 1999 we heard this appeal by the employer, Millat Housing Association ["the Association"] against a decision of the London (South) Employment Tribunal, chaired by Mr Rideout, promulgated with extended reasons on 17th May 1997. That decision ['the original decision'] followed hearings held before the tribunal on 16th October 1996 and 29th and 30th January 1997. The tribunal upheld the applicant, Mr Nijhar's complaints of unfair dismissal and entitlement to a redundancy payment and awarded a redundancy payment £420 and a compensatory award for unfair dismissal of £1,882.31. In addition, they upheld his complaint of breach of contract and awarded him damages of £2,056.39. The Association's counterclaim was dismissed, saved for an item relating to a mobile telephone or its value, £25.[2]The Association took a number of points in the appeal, challenging each of the tribunal's findings made in favour of the applicant. In particular, it was contended in the Notice of Appearance that the Employment Tribunal ought to have found that the applicant had not completed two years continuous service at the effective date of termination ["EDT"] for the purposes of qualifying for unfair dismissal and redundancy entitlement protection.[3]We refer to the judgment which I delivered on behalf of the Appeal Tribunal on 11th February 1999. In short, it was accepted on behalf of Mr Nijhar that the original decision and reasons were defective, in that no mention is there made of a ruling made orally by the Employment Tribunal on the first day of hearing, 16th October 1996, that the applicant had completed two years service at the EDT. In these circumstances, with the consent of both parties, and in accordance with the practice to be found in the judgment of Nolan J in Yusuf v Aberplace Ltd [1984] ICR 850 , we directed that this question be returned to the original Employment Tribunal for written reasons as to their decision on this preliminary issue. Thereafter we went on to consider the remaining grounds of appeal and dismissed them for the reasons given in our judgment, subject to further argument on the two-year continuous employment point. We directed that following promulgation of the tribunal's further decision and written reasons on that point the Association had leave, within 28 days of its promulgation, to lodge amended grounds of appeal limited to challenging the tribunal's findings on that point, if so advised. Otherwise the appeal would stand dismissed.[4]On 27th May 1999 the tribunal promulgated its written decision with extended reasons on the issue of qualifying service ["the second decision"].[5]On 23rd June 1999 the Association lodged amended grounds of appeal challenging the second decision.[6]Thereafter I directed that the further grounds of appeal be listed for ex parte preliminary hearing before the same division which sat on 11th February 1999. That is the matter which is before us today.[7]In the second decision reasons the tribunal found that the applicant's employment with the Association commenced on 24th June 1994. On 4th April 1996 he was handed a letter which stated that he was being given three months notice from 7th April, that notice to be worked out.[8]Pausing there, had the applicant worked out that three months notice period the EDT would be 6th July 1996 and he would then have completed two years qualifying service.[9]However, it was the Association's case that on 1st May 1996 the Chairman of the Association wrote again to the applicant, offering him "two months salary in lieu of the remaining two months of notice and to relieve you of all official duties with immediate effect", and that on 9th May 1996 the applicant accepted payment in settlement of all claims. The applicant's evidence was that he was not notified of any such payment and he did not accept the offer which had been made on 1st May.[10]The tribunal found that the applicant did not accept the Association's offer made on 1st May, but continued to seek to negotiate conditions for the termination of his employment.[11]Further they found that the offer made by the Association on 1st May sought to alter the original position so that the applicant was not required thereafter to work out his notice. However, the Association did not purport to alter the EDT by substituting an earlier date of termination than that originally specified in the letter of 4th April. The EDT was 6th July 1996. The applicant had sufficient qualifying service to bring his complaints both of unfair dismissal and for a redundancy payment.[12]In this part of the appeal against the second decision Mr Sheikh, who today represents the Association having recently been appointed vice-Chairman, submits that in the original decision the Employment Tribunal made at least three factual errors. In these circumstances, what confidence can the Association have in the correctness of the tribunal's decisions he ask rhetorically?[13]It seems to us that is not a valid ground of law on which to base this appeal. However, he not being legally qualified, we have drawn his attention to the law as we understand it on shortening the notice period.[14]In particular we have carefully considered the leading authority Stapp v The Shaftesbury Society [1982] IRLR 326 . There, the applicant was given one months notice of termination of employment on 24th January 1980. That would have resulted in an EDT of 23rd February 1980, in which case he would have completed the necessary qualifying period of service, then 52 weeks.[15]On 7th February 1980 the respondent wrote to him in these terms, he having instituted a grievance under the respondent's grievance procedure:
"In view of this action and the increasingly disturbing affect which this dispute is having on the well-being of both staff and disabled residents at Ashley House [ where the applicant was employed ], I regret that I must ask you to relinquish your duties there with effect from today 7 February and remove yourself and your belongings at the same time. Needless to say we are prepared to pay you in full for your original one month notice period and our cheque for February pay up to and including 23 February is enclosed."
[16]The Court of Appeal upheld the decisions below of the Employment Tribunal and the EAT to the effect that the letter of 7th February was such as to terminate the employment summarily on that day. In these circumstances the applicant did not qualify for unfair dismissal protection.[17]Whilst we can see superficial similarity between the present case and that of Stapp we think that the latter can and should be distinguished on its facts.[18]In that case there was no question but that the employer's letter could only be understood to have the effect of terminating the employment immediately. Here, the Association's letter of 1st May 1996 was, the tribunal found, an offer to shorten the notice period on agreed terms. Again, on the tribunal's findings, the applicant did not accept that offer.[19]Before us today, Mr Sheikh has submitted that the circumstances surrounding that matter were that the applicant approached the Association to be released early in return for a pay off. Discussion ensued. He was asking for six months pay and that was not acceptable to the Association. They offered him two months pay. Mr Sheikh also contends that one of the reasons why the applicant asked to be released early from his duties was that his wife was ill and needed to look after her. In these circumstances, submits Mr Sheikh, the Association believe that his employment finished on 9th May 1996 and we have been referred to a document which was signed by the applicant on that day when he left work for the last time.[20]The difficulty with that submission, it seems to us, is that those are not the findings of fact that were made by the Employment Tribunal. We cannot reinvestigate factual matters. The true position in this case, in our judgment, is that the position in May 1996 was at best ambiguous. There was no agreed shortening of the effective date of termination. Nor was there a unilateral termination in May 1996 on the part of the Association. Where the position is at best ambiguous as here, such ambiguity must, on the authorities, be construed against the party seeking to contend that there has been a shortening of the notice period. In this case, the Association. In our view this case is more akin to the facts of TBA Industrial Products v Morland [1982] IRLR 331 , where the Court of Appeal declined to find that the notice period had been shortened.[21]In all the circumstances, we have concluded that this remaining ground of appeal raises no arguable point of law to go forward to a full inter partes appeal hearing and, consequently, the appeal must be dismissed. [Following an application for leave to appeal to the Court of Appeal][22]We will not grant leave to appeal. It follows as night follows day that if we thought that there was not an arguable point of law to go forward in this tribunal, we certainly do not think that there is one to go to the Court of Appeal. You have asked and we have turned you down. As I indicated to you if you want to renew the application you must do so directly to the Court of Appeal.