Southern Co-Operative Dairies Ltd v Simpson [1999] UKEAT 969_98_0103

EAT
Southern Co-Operative Dairies Ltd v Simpson
[1999] UKEAT 969_98_0103 · 1999-03-01

JUDGE LEVY QC :

This is an appeal by the Southern Co-operatives Dairies Limited ["the company"] in these circumstances: On 1st October 1997 Mr T W Simpson, the respondent to this appeal, was dismissed. On 10th October 1997, on an appeal from that dismissal, he was offered his job back in a letter from the Chief Executive. Having first set out the background of the appeal the respondent was offered this alternative:
"The alternative disciplinary action on offer subject to your agreement is as follows:-
1) Your reinstatement to be effective from a mutually agreed date. The period between 1st October and your reinstatement will be treated as unpaid suspension.2) A final written warning will be issued as to your future action.3) You accept the management authority in detailing your work duties up to an including your full 12 hour contract.

. .."

There are other numbered clauses dealing with matters to avoid future difficulties. That offer was not accepted by the respondent. He brought proceedings by a complaint dated 17th December 1997 to an Employment Tribunal complaining "unfairly dismissed the dismissal due to union activities". His complaint, after the company had entered its appearance, was heard by an Employment Tribunal sitting at Reading on 20th May 1998. The decision of the Employment Tribunal was that:
"1 The applicant was unfairly dismissed and did not agree to being reinstated.
2 The respondents are ordered to pay the applicant the sum of £1,260 in respect of the basic award.3 No order is made in respect of the compensatory award."The appeal has been made by the company in these circumstances: It says that the tribunal has misdirected itself in looking at the provisions of section 122 of the Employment Rights Act 1996 . What the Employment Tribunal said about that is as follows:
"6 The next question is whether or not the offer that was made, which is set out in the letter of 10 October [ which we have read ], ... constitutes an offer which falls within Section 122 of the Employment Rights Act 1996. That would have to be an offer which would in all respects put Mr Simpson back in the same position that he would have been in had be not been dismissed in the first place, whereas the offer of reinstatement involved a lost of pay. Although at first sight the argument advanced by Mr Knowles that the loss by Mr Simpson of nine days' or so pay was a disciplinary matter which fell within the terms of the contract we do find that the offer was not an offer to which Section 122 would apply. This is because as at 1 October 1997 the contract of employment had come to an end. It was not kept alive until the appeal hearing and we cannot see therefore how the loss of pay can be a disciplinary matter in accordance with the terms of the contract if the contract did not exist over the period between 1 October and when the reinstatement would have come into effect. It would have been a different matter if the offer of reinstatement involved no loss of pay or if the contract remained in existence over the relevant period."
Mr Knowles, who appears before us, as he did before the Employment Tribunal, submits that this is wrong because if it is right, it means that any lower penalty enforced by a disciplinary tribunal means that section 122 would not come into effecting the circumstances if a offer of reinstatement is made. With respect to Mr Knowles, we find the logic of the Employment Tribunal compelling. The words of the section say "would have the effect of reinstating the complainant in his employment in all respects". The offer made by the Chief Executive did not offer to reinstatement him "in all respects". Moreover, it was not accepted and the Employment Tribunal found that it was not unreasonable for the respondent to refuse to accept it in all the circumstances. We therefore cannot acceptMr Knowles' submission that the finding of the Employment Tribunal was wrong.We would add that if, at the first disciplinary hearing Mr Simpson had been suspended not dismissed pending the hearing of his appeal, of course there would have been a different situation because he would not have been dismissed until after the appeal had been held.For the sake of completeness, we add that it is clear to us from the four corners of the decision that the Employment Tribunal properly addressed itself on the reductions to be made both by section 122(1) and (2) of the 1996 Act. Therefore, there is nothing left in this appeal and therefore it fails and we dismiss it at this stage.