MRS J MCLOUGHLIN v SUTCLIFFE CATERING (UK) LTD [2002] UKEAT 0932_01_1505

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 0932_01_1505

Case No Appeal No. EAT/0932/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS J MCLOUGHLINAPPELLANT

SUTCLIFFE CATERING (UK) LTDRESPONDENT

Before

Her Honour Judge A Wakefield Dr D Grieves

Date 15 May 2002

[1]APPEARANCES For the Appellant MR A McLOUGHLIN Representative For the Respondent MR M CREAMORE Solicitor Messrs Gregsons Solicitors St Christopher's House Tabor Grove London SW19 4EX JUDGE A WAKEFIELD This is an appeal by Mrs Jean McLoughlin against a decision of an Employment Tribunal sitting at Reading on 12 April 2001 and 21 May 2001 by which her complaint of unfair dismissal was dismissed.

[2]The appeal is limited to one point only, being whether the Employment Tribunal were wrong in law or perverse in concluding that the Appellant's employment had been terminated by her resignation rather than that the Respondent had dismissed her.

[3]The Appellant had been employed by the Respondent or its predecessors since 1988, latterly at least as Catering Supervisor. The facts leading to the termination of the employment, as found by the Employment Tribunal and not disputed, were (as relevant to this appeal) as follows. The Appellant wrote a letter to the Respondent dated 21 June 2000 in which she said:

"I told you on Mon 19 June 2000 that I was resigning. My last day of work will be Thursday 29 June 2000. I am unable to work for you anymore as my position and status as a supervisor has been eroded and undermined over a long period of time. There are also other reasons which I do not wish to go into detail about at the moment."

[4]The Employment Tribunal found that the following subsequently happened:

"On receipt of the resignation letter the respondent decided that it would be better under the circumstances if the applicant did not work her notice and were to be paid her wages for that period because the applicant had shown in her resignation letter an inability to operate with management. The applicant had also said that she could not work with "two-faced back stabbing management"."

The Deputy Manager of the Respondent, David Ritchie, therefore responded on 22 June 2000 to the Appellant with a memo in the following terms:

"Further to our conversation on the 21/06/00 I would like to clarify a few points. I wanted to talk things through properly and explain the reason behind the decision made by Paul Honey and Personnel management Sutcliffe Catering. It was decided that since your reason for leaving (as stated in your resignation) was due to not being able to work with the management team at A.W.E. It was regrettably deemed operationally beneficial for all parties to sever ties at this point and to pay you your weeks notice. You will be paid your weeks notice and the normal average overtime that you would have gained in this week, added to this you will receive 3 days from your sickness bonus. You will have already received your overtime back pay and bonus for the function 10/04/00. It is regrettable that we could not have parted under better circumstances. I have arranged for your debrief to take place on 23/06/00 with Chris Reeder in F6.1 room 2013 at 2 pm. If this is not convenient then can you please contact Pam Dei-Ceci on 5881 to arrange a better date or time."

[5]As to the legal analysis of the situation thus created, the Employment Tribunal said the following at their paragraphs 11 and 12:

"Possibly in some circumstances, one could construct the wording of this memorandum as implying a dismissal. However, we do not believe that this was the intention of the respondent; neither do we believe that the applicant considered herself to have been dismissed nor do we believe that Mr Ritchie issued words of dismissal to the applicant. We have concluded from the evidence that he did indeed say to her that she would be paid in lieu of working and not be expected to work. In the applicant's further letter to Mr Bates of 22 June on the same date as the memorandum from Mr Ritchie she expressed a wish to withdraw her resignation notice given on 21 June as she had "put it in on the spur of the moment whilst under extreme stress and pressure" - to quote her words. Had the applicant thought that she had been dismissed on 22 June then she was unlikely to be writing a letter requesting the withdrawal of her resignation Moreover, the thrust of the applicant's case before this Tribunal has been one of unfair constructive dismissal where the applicant must rely upon a resignation. The evidence of Mr Honey and Mrs Bothwell supports the conclusion that the applicant was not dismissed. Mr Honey was a decision-maker and it was his decision that it would be better for all concerned if the applicant were not to work her notice and to be paid her wages. Before making this decision he had consulted Mrs Bothwell at Personnel and her evidence was, and we accepted this evidence as true, that the intention was to release the applicant from working because the respondent believed that there was no obligation to provide the applicant with work for the balance of the notice period so long as she received wages. Had the applicant's employment been terminated by the respondent,then she would have been entitled to notice of longer than one week."

[6]Their conclusion was therefore that the employment was terminated by the Appellant's resignation rather than by any dismissal. The Employment Tribunal went on to consider the question of constructive dismissal and concluded that there had been none and we are not concerned with that finding in this appeal.

[7]The Appellant today, represented by her husband, has argued that by its memorandum on 22 June the Respondent had brought forward the date of termination of the employment and had thereby dismissed her and become obliged to give her at least the 12 weeks notice of termination to which she would have been entitled by reason of her length of service. Issues as to the fairness or otherwise of the dismissal would then have arisen. It is argued that by requiring the Appellant to be debriefed prior to the termination date, thereby withdrawing her security clearance and denying her access to the work place until 29 June, there was a breach of the contract of employment amounting to a dismissal. It is however conceded by the Appellant that the Respondent had no obligation in any notice period actually to provide work for the Appellant to do.

[8]In support of his arguments, Mr McLoughlin on behalf of the Appellant has relied on an author's note in Harvey on Industrial Relations and Employment Law which appears in the commentary to section 95(2) of the Employment Rights Act 1996. Section 95 deals with the circumstances in which an employee is dismissed and sub section (2), which is not of itself relevant to the present situation, reads as follows:

"An employee shall be taken to be dismissed by his employer for the purposes of this part if:- (a) the employer gives notice to the employee to terminate his contract of employment, and (b) at a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer's notice is due to expire; and the reason for the dismissal is to be taken to be the reason for which the employer's notice is given."

[9]In order to put the part of the note to which we have been referred in its context, it is necessary to read the whole of the author's commentary on that sub section and it is as follows:

"Where, during the period of notice of dismissal, the employer agrees at the employee's request to his leaving before expiry of the notice, the effect is only to vary the notice of dismissal so that the dismissal remains effective."

Various cases are then cited. "The employee's 'counter notice' under this sub section may be shorter than the minimum provided by section 81; quaere whether it may be immediate. The lodging of an application for unfair dismissal before the expiry of the employer's notice cannot be construed as counter notice by the employer." Now I come to the part which has been specifically cited to us:

"Note however, that where the employee resigns if the employer imposes the termination of the employment before the expiry of the notice given this will amount to a dismissal: British Midland Airways Ltd v Lewis [1978] ICR 782 EAT. The correctness of this view of Lewis was questioned in Marshall (Cambridge) Ltd v Hamblin [1994] IRLR 260, sed quaere whether the reasoning in this case is itself sustainable."

That is the end of the note as far as is relevant.

[10]We therefore turn to examine the cases which were there cited. In British Midland Airways Ltd v Lewis , the employee, a pilot, told his employers on 28 January 1977 that he wished to resign. They insisted on his giving the requisite 3 months notice but he requested to leave a month early. No agreement was reached but the employer quickly found a replacement for Mr Lewis and he was told by them to leave on 4 February. He objected but was given no alternative. He successfully complained of unfair dismissal. The Employment Appeal Tribunal dismissed the employer's appeal. Phillips J giving judgment said at page 785 of the Report, starting at letter H: "The submission put forward by Mr Goodchild, in an interesting argument, is that the contract of employment was varied on January 28. The elements going to make that variation, he says, are these. The employee wished to leave of his own volition. He wished to leave no later than March 28. He did not therefore wish to stay until the date of expiry of a proper notice, that is to say, April 28. His employers had agreed to get, if possible, a replacement and an earlier release date for him. Therefore, it is submitted, there can be spelled out of that a mutual agreement that he would go at any date after January 28 but before the due date, by which proper and convenient arrangements could be made; that such arrangements were in fact made by the employers for February 4, and therefore he was obliged, in accordance with what he agreed to do to go on that date. Well, that is an attractive argument but in our judgment it is ill-founded. Our interpretation of the matter is the same as that of the industrial tribunal, namely, that on January 28 the two sides had put forward their desires and wishes, which were mutually inconsistent and that the matter had been left on that day in state of negotiation, and no binding agreement had been reached as to when he was to go or in what circumstances he was to go. Thus, when February 4 was proposed, whereas it was sensible enough from the view of the employers, because they had engaged somebody else, it was not a date which could be forced upon the employee, unless he agreed; and we do not accept that he had already agreed. It is true that the argument put forward by Mr Goodchild has this to be said for it, that the employee, of course, wanted to go earlier - that is to say by March 28 - than the date on which he was entitled to go without the consent of the employers, and therefore there was motive on both sides for some kind of compromise or arrangement. But we are satisfied that the industrial tribunal was correct in thinking that no such agreement had ever been made. It further follows in our judgment that they were correct in saying that he was dismissed. That is a very different situation from the one with which we are here dealing. Mr Lewis was forced to leave his employment earlier than the date he proposed in his resignation. He was not paid beyond 4 February. In those circumstances it is hardly surprising that the finding was one of dismissal. In the present case, the Respondent did not terminate the Appellant's employment earlier than 29 June. They paid her to that date but did not require her to work beyond 21 June.

[11]Turning to the other case mentioned in the note, Marshall (Cambridge) Ltd v Hamblin , the facts were that the employee, a car salesman, received amounts by way of commission on sales pursuant to a scheme expressed to be outside his contract of employment, which commission substantially exceeded his basic salary. On 18 November 1990 he gave three months written notice to terminate his employment. Under the contract of employment the employers had the discretion to make a payment in lieu as an alternative to the employee working out the notice period. They paid his salary up to the 18 February 1991 but refused to allow him to continue working after 30 November 1990. They made no payments to him in respect of commission he might have been able to earn. He complained to the Industrial Tribunal that an employer could not make a payment in lieu of an unexpired period of notice given by him and that he had been unfairly dismissed and he was found to have been unfairly dismissed. The employers appealed and this Employment Appeal Tribunal by a majority allowed the appeal.

[12]The judgment was given by Judge Hargrove QC and he referred specifically to British Midland Airways Ltd and to the Harvey note that I have just read and he said this: In so far as the entry in Harvey indicates that any termination during a period of the employee's notice will amount to a dismissal, there is no support for that proposition in the case cited and in our view the passage in Harvey is misleading." And the conclusion of the Employment Appeal Tribunal in that case was:

"There was no dismissal in this case. The employee resigned within the terms of the contract. The employers paid wages but not commission until the expiry of the notice. In so far as such commission is contractually recoverable that is a matter which lies outside the jurisdiction of the Industrial Tribunal."

[13]It seems to us that that rejection of the content of the note in Harvey may be too sweeping. We are however satisfied that in the present case there was no termination of the Appellant's contract of employment imposed by the Respondent before the expiry of the notice which was given. The Employment Tribunal were correct in their analysis of the situation. The employment continued to the end of the notice period but the Appellant was not required to work out that notice period although she was paid her wages in full. No term can be implied that she be permitted to attend the place of work even if not working. There was no breach of her contract and this appeal is therefore dismissed.