BRITISH AIRWAYS PLC v MR B SOHAL [2000] UKEAT 642_00_1910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 642_00_1910Case No Appeal No. EAT/642/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BRITISH AIRWAYS PLCAPPELLANTMR B SOHALRESPONDENT
Before
His Honour Judge Peter Clark Mr J HoughamDate 19 October 2000
[1]APPEARANCES For the Appellants MISS E SMITH (of Counsel) Denton Wilde Sapte Solicitors 1 Fleet Place London EC4 7YS JUDGE PETER CLARK : The preliminary issue before the London (North) Employment Tribunal, sitting on 12th April 2000, required a finding as to the effective date of termination of the applicant, Mr Sohal's contract of employment with the respondent, British Airways plc ['BA']. By a decision promulgated with extended reasons on 16th May 2000 the tribunal found that the effective date of termination was 16th November 1999. Consequently that part of his Originating Application presented on 15th February 2000 complaining of unfair dismissal was in time. Against that finding BA now appeal. Background The applicant was employed by BA under a fixed term contract due to expire on 31st October 1999. His period of continuous employment with BA had commenced on 6th April 1998. Prior to the expiry date he applied for other jobs within BA. He did not know the outcome of those applications by 31st October and BA accepted that he was granted a 14 day extension to 14th November so that his applications could be processed.[2]He still had not heard finally by 14th November and attended for work on both 15th and 16th November. On 16th November, so the tribunal found, Mr Donald, a manager in the Cargo Department, gave him two letters. The first informed the applicant that his latest job application had been unsuccessful; the second, from Mr Donald told him that he should not be on site and should surrender his pass and uniform. That letter asserted that his contract had ended on 14th November.[3]Thus the issue before the tribunal was this; was the effective date of termination the 14th November, when the 14 day extension expired as BA contended, or was it 16th November as the applicant claimed?[4]In deciding that question the tribunal took into account the following factors, in particular:(1) Mr Donald wished to preserve continuity of employment for the applicant in case he was given a new job.(2) Mr Donald did not ask the applicant to hand over his uniform and security pass until 16th November when his last job application had failed, having been fully aware that the applicant was working on site on 15th and 16th November.(3) The applicant signed his form IT1 on 7th or 8th November, but did not present it until 15th February in the belief that his employment had ended on 16th November. That was the effective date of termination which he put on that form in box 4. In these circumstances the tribunal held that the effective date of termination was 16th November. The claim of unfair dismissal was presented within time. The Appeal[5]Miss Smith, on behalf of BA, advances the following grounds of appeal:(1) There was no evidence to support the finding that the employment was extended beyond 14th November. We disagree. That was the applicant's evidence, accepted by the tribunal. He attended for work on 15th and 16th November with the knowledge of Mr Donald, waiting for the outcome of his final job application. When that failed he was told to hand in his pass and uniform and to leave, which he did on 16th November.(2) No reasons are given by the tribunal as to how they reached the conclusion that the employment was extended beyond 14th November. Again, we disagree. It seems to us that the tribunal found that the employment was extended by conduct, Mr Donald permitting the applicant to attend work on 15th and 16th November pending the outcome of his final job application. Miss Smith submits that it was Mr Donald's evidence that on 15th November he told the applicant not to return. That was not the evidence of the applicant, so we are told, and it is clear to us, reading the tribunal's reasons as a whole, that they accepted the applicant's evidence on that point. As a matter of law it was open to the parties, by agreement, to extend the employment and thus postpone the effective date of termination. see Mowlem Northern Ltd v Watson [1990] ICR 751 . That is what the tribunal, permissibly we think, found happened here.(3) The complaint here is that the tribunal failed to give adequate reasons for rejecting Mr Donald's evidence. The particular parts of his evidence relied upon are these:
"(a) that the [ applicant's ] contract of employment had ended on the 14th November 1999; (b) that contracts of employment could only be extended by the Manager of Hub Operations and that the Manager of Hub Operations had not extended the [ applicant's ] contract of employment beyond the 14th November 1999; (c) that since [ applicant ] had turned up for work on the 15th November 1999 after the expiry of his contract of employment [ Mr Donald ] was concerned that he would also turn up for work on the 16th November 1999 and that was why he sought to give the letter of the 16th November 1999 to the [ applicant ] personally; and (d) that he had not taken the [ applicant's ] security pass and uniform from him prior to the expiry of his contract of employment for perfectly good reasons relating to the fact that the [ applicant ] had told him that he would be going to another job within [ BA ] after the 14th November 1999."
We are not persuaded that this submission is correct. It was common ground that the contract was formally extended for 14 days. Assuming that only the Manager of Hub Operations was formally empowered to extend the contract further, that did not prevent an informal agreement for a further extension, evidenced by Mr Donald permitting the applicant to attend for work on 15th November, on the tribunal's findings, and again on 16th November. The tribunal expressly found that that there was no formality apparent in this case. It was only when the final job application had been rejected that Mr Donald asked the applicant to hand in his uniform and pass to signify the end of his employment. It is significant, or so it appeared to the tribunal, that Mr Donald did not require the applicant to hand over his uniform and pass until 16th November because the applicant had told him that he would be going to another job within BA. As the tribunal found, Mr Donald wished to preserve the applicant's continuity of employment. (4) Next it is said that the tribunal did not consider an alternative submission that even if the contract was extended to 15th November, the tribunal failed to deal with Mr Donald's evidence that on 15th November he told the applicant that his contract had ended on 14th November and he was not supposed to be working and was to leave the premises. We have already touched on this earlier in this judgment. It seems to us that there was a conflict between Mr Donald and the applicant as to what was said by Mr Donald on 15th November and looking particularly at paragraphs 3 and 4 of the tribunal's reasons, that conflict was resolved in favour of the applicant's evidence. In particular, it seems to us, that that evidence from Mr Donald is inconsistent with the tribunal's finding at paragraph 3 of their reasons that between 11th and 16th November the applicant's name was on the duty roster and he attended for work, for which he needed his security pass and uniform and did work, indeed, he was not handed the letters by Mr Donald on 16th November until the end of his shift. Miss Smith also relies on the letter handed over by Mr Donald on 16th November, informing him that his employment had ended on 14th November. However, it is well-established that retrospective termination will only be permitted with the agreement of the parties. The tribunal rejected that evidence as indicating that no contract continued after 14th November. (5) Finally, it is submitted that the tribunal's decision is perverse in the sense that it is plainly wrong. Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 . We disagree. On the facts as found by the tribunal, their conclusion, it seems to us, was a permissible option.[6]In these circumstances, we have detected no error of law in the tribunal's approach to this question and accordingly this appeal must be dismissed at this preliminary hearing stage.