MR H A RAI v SOMERFIELD STORES [2003] UKEAT 0557_02_1205

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0557_02_1205Case No Appeal No. EAT/0557/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR H A RAIAPPELLANTSOMERFIELD STORESRESPONDENT
Before
His Honour Judge J BurkeDate 12 May 2003
[1]APPEARANCES For the Appellant MR BEN ADAMSON (of Counsel) Instructed by: The Bar Pro Bono Unit For the Respondent MR DAVID EASTWOOD (Representative) HIS HONOUR JUDGE J BURKE QC The Issues Mr Rai was employed by Somerfield Stores Ltd ("Somerfield") as a home delivery driver from June 1999 (or perhaps from an earlier date) until June 2000 when he was demoted to the position of store assistant. He did not, after that demotion, go back to work. Eventually, in the spring of 2001, his employment by Somerfield finally came to an end. He presented an Originating Application to the Employment Tribunal dated 5 April 2001 which was received by the Tribunal on 6 April 2001. His application was treated as putting forward complaints of unfair dismissal and of unlawful deduction from wages.[2]On 26 November 2001 the Employment Tribunal, sitting at Leicester and chaired by Mr J A Threlfell, decided that Mr Rai's complaints were outside the jurisdiction of the Tribunal and they were therefore dismissed. Mr Rai now appeals against that decision.[3]The Tribunal decided that the demotion of Mr Rai on 22 June 2000 was a termination of his employment and in effect that thereafter he was re-employed as a store assistant. Both parties before the Tribunal accepted that, after 22 June 2000, Mr Rai's employment continued; that is to say that there was between Mr Rai and Somerfield a contract of employment.[4]At the Preliminary Hearing of Mr Rai's appeal on 4 September 2002 a different division of the Employment Appeal Tribunal, but chaired by the same Chairman as the division of the Employment Appeal Tribunal which has heard the full appeal today, found that there was no arguable error of law in the Tribunal's conclusions that any claim in respect of the demotion or in respect of unlawful deductions, made up to or at the time of the demotion, was out of time, having been presented obviously outside the ordinary three-month time limit prescribed by statute in circumstances in which, as the Tribunal found, it was reasonably practicable for Mr Rai to have brought those complaints within the statutory time limit.[5]Accordingly, although in his Skeleton Argument Mr Eastwood, who has appeared before us on behalf of Somerfield, sought to present some arguments upon the events or the effects of the events of June 2000, those events, or their effects are not relevant for the purposes of considering Mr Rai's appeal; and we say no more about them in that context. Mr Rai's complaints about those events and their effects were quite simply brought too late.[6]The Tribunal turned to consider how the post-demotion employment terminated. They concluded that Mr Rai had been dismissed by Somerfield with effect from 9 April 2001. Unhappily for Mr Rai, his Originating Application had, as we have said, arrived at the Employment Tribunal on 6 April. The Tribunal found that the Originating Application had therefore been presented before the termination of Mr Rai's employment and that, pursuant to section 111 (2) (a) of the Employment Rights Act 1996 , which reads: (2) "Subject to subsection (3), an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal – (a) before the end of the period of three months beginning with the effective date of termination." it was premature and that the Tribunal had no jurisdiction.[7]By the time of the Tribunal's decision, well over three months had passed from 9 April 2001. Mr Rai had not issued a new Originating Application, nor has he done so since. Thus the Tribunal decided that, in respect of his dismissal in June 2000, Mr Rai's claim was presented too late and that in respect of his further dismissal in April 2001 his claim was presented, by a period of three days, too early. It is the latter decision which is the subject of this appeal.[8]Mr Adamson of Counsel, acting under the aegis of the Bar Pro Bono Unit, has argued this appeal on two fronts. The first is that, if the dismissal occurred as the Tribunal decided on 9 April 2001, it was brought about by a notice given to Mr Rai by the employers in a letter written to Mr Rai at some date between 19 March and 9 April and that as a result this is a case which falls within section 113 of the 1996 act, which provides an exception to the effect of section 111 (2) (a) (to which we have already referred), and that the Tribunal had jurisdiction, pursuant to that sub-section, on the basis that the Originating Application was presented during the currency of that notice.[9]The second argument is that the Tribunal had jurisdiction on the basis that Mr Rai was alleging, instead of or additionally to dismissal by the employers on 9 April, a constructive dismissal on or before 6 May; so that the Originating Application presented on that day was not premature.[10]In their Answer, Somerfield seek to cross-appeal, firstly, on the grounds that the demotion in June 2000 was not a dismissal or, if it was, there was no continuing contract of employment thereafter and, secondly, on the basis that the Tribunal erred in finding that any subsequent employment terminated on 9 April and should have found that it did not terminate until a date unspecified much later in May 2001.[11]We are grateful to Mr Adamson and to Mr Eastwood for their helpful submissions. Termination on Notice[12]Section 111 (3) of the 1996 Act provides: (3) "Where a dismissal is with notice, an industrial tribunal shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination." Sub-section 111 (4), in effect, adjusts other provisions of the part of the Act which deals with unfair dismissal so as to assimilate them to a case which is brought and indeed decided during the currency of a notice but before a dismissal has in fact occurred.[13]The relevant facts, as found by the Tribunal, are that Mr Rai did not return to work at all after his demotion. After Somerfield had written a number of letters to him to which he did not respond, there was a meeting between them on 8 March 2001, at which Mr Rai was told that there was a position for him to return to on 19 March. While the Tribunal made no findings as to this, Mr Rai asserts that at that meeting he was treated with extreme rudeness by Mr Mitchell of Somerfield.[14]On 19 March Mr Rai did not turn up for work. Accordingly, Mr Mitchell wrote him a letter which is undated but which must have been written on 19 March, or between 19 March and 9 April, in which he said:
"Further to our meeting on Thursday 8 th March 2001, with Mr S Willis, and myself held at your request, it was agreed that you start back at Haymarket store on Monday 19 th March 2001. We re-confirmed that your job title has been changed to a Dairy Assistant, and, that work has been available for you as a General Assistant since Thursday 6 th July 2000. You have not attended work since Thursday 6 th July 2000, nor have you produced medical certification for the absence. We have heard nothing from you since your meeting with myself on Thursday 8 th March 2001. Your absence suggests that you no longer attend to resume work with the company." (The word used in the last sentence, we interpolate, is "intend" not "attend", although "attend" might have been intended). "
We are anxious to ensure no misunderstanding occurs in this matter, and, urge you to return to work by Monday 9 th April 2001. If you fail to return to work by this date we will take this as an indication that you no longer wish to remain in our employment and consequently that date will be processed as your date of resignation."[15]Mr Rai did not return to work on or before 9 April. On 14 May Mr Mitchell wrote another letter in which he said:
"Further to my letter detailing your expected return to work, at our Haymarket store, I am concerned that I have not heard from you. Therefore in these circumstances, I can only treat your employment with the company as terminated as of 9 th April 2001."
[16]It is clear that the first letter was written in terms which sought to dress up the termination by Somerfield of Mr Rai's employment as a resignation. Of course, an employer cannot, when an employee fails to attend work as required, dictate to him that he has resigned. If he has not resigned the employer, if he wishes to bring the contract of employment to an end, must himself take steps to do so.[17]The Tribunal found that, in the first of the two letters from Mr Mitchell to which we have referred, the employers were informing Mr Rai that if he did not come back to work on 9 th April he would be dismissed, and indeed that, when he did not come back to work on that date, he was dismissed.[18]On the basis that the Tribunal were right so to conclude, the central question is whether that termination of his employment by the employers was a dismissal with notice within the words of section 111 (3). If it was, the Originating Application was presented after the notice was given but before the effective date of termination, section 111 (3) applied and the Tribunal had jurisdiction to hear Mr Rai's unfair dismissal claim and to decide it on the merits.[19]We do not have the benefit of the Tribunal's views on this issue which is not referred to in the decision and may not have been taken by Mr Rai's union representative who acted on his behalf at the Tribunal. But, no doubt, because the point goes to jurisdiction, Somerfield have not sought to suggest that it is not open for us to decide at the appellate stage.[20]It is a simple point as to which no evidence is necessary which requires us to consider whether the letter which is undated, written at some stage between 19 March and 9 April, was a notice and whether the termination on 9 April was a dismissal with notice.[21]There is no statutory definition of either notice or dismissal with notice; and, further, we are informed by Mr Adamson and Mr Eastwood that there is no decision of the Employment Appeal Tribunal, or at any higher level, as to what constitutes a notice or a dismissal with notice for the purposes of section 111 (3).[22]So, to that extent, the point which we have to resolve is a new or "green field" point. It comes down to this, in our judgment: where the employer delivers an ultimatum or conditional notice, i.e. in a case in which the employer says, for example, "if you do not come back to work by a certain date your contract of employment will be terminated on that date" and the contract of employment is terminated as a result of the employee's failure to return to work by that date, has there been a dismissal with notice?[23]The only decisions to which we have been referred on this issue are, firstly, a decision of the Employment Tribunal in Sealey v Avon Aluminium Co Ltd [1978] IRLR 285 and the decision of the Employment Appeal Tribunal, presided over by Mr Justice Arnold, in Burton Group v Smith [1977] IRLR 351.[24]In Sealey , the Employment Tribunal at paragraph 23, by way of obiter dicta because they were considering a situation which did not expressly arise on the facts of that case, said this about a letter in which the employers had told the employee that if he did not return to work by a certain time and date his employment would terminate: 23 "The neutral use of 'terminate' resembles the respondents' letter A2. This again was taken as dismissal. In general, we regard an attempt to delegate to the employee the responsibility for terminating the contract for a continuing fundamental breach is an ultimatum. At the highest it might be a conditional notice of dismissal unless the employer's demand is met; but in reality the employer can still withdraw his ultimatum, whereas he could not insist on withdrawing a notice of termination: Riordan v War Office 1959 1 WLR 1046, 1054…"[25]Mr Adamson and Mr Eastwood agree that an unconditional notice by an employer to an employee to terminate the employee's contract of employment cannot be unilaterally withdrawn by the employer, as established in Riordan v War Office . Mr Adamson submits that the key question in the present case is whether the notice in the undated letter could be withdrawn unilaterally. If it could be withdrawn unilaterally, he accepts that it was not a notice within section 111 (3), or rather the termination was not a dismissal with notice within that sub-section. But if it could not be unilaterally withdrawn, then he submits that the circumstances of the case fell within that sub-section.[26]Mr Eastwood, as we understand him, accepts these propositions. Thus the issue can be reduced to whether the undated letter contained a notice which was not capable of unilateral withdrawal. Mr Adamson submits that that was indeed the situation and that the letter should be so construed. Mr Eastwood contends the opposite. Mr Adamson submits that, having thus identified the issue, to describe the notice as an ultimatum or as a conditional notice is unhelpful. He submits that the only issue is whether or not it could be unilaterally withdrawn.[27]Alternatively, he argues, or indeed cumulatively he argues, that it is necessary to construe section 111 (3) purposively as including a notice such as that given in the undated letter in this case. He has relied on Burton Group Ltd v Smith to this extent. That was a case in which the issue was whether at the time of his death the Applicant was under a notice of dismissal. It was essential to decide that in order to decide whether he had rights which passed on despite his death. The notice in that case was one which was expressed in these terms:
"…the actual date of termination applicable to your individual case will be notified to you as soon as a decision on this point is available."
[28]The Employment Appeal Tribunal decided that a letter which informed the employee that his employment would be terminated not later than a particular date but on a date which would be notified to him when a decision as to that date was made, was not a notice of dismissal, because a notice must contain either a specific date upon which the employment is to be terminated or material from which that date is positively ascertainable.[29]Mr Adamson submits that, in this case, the undated letter specified a date so that the requirement set out by the Employment Appeal Tribunal in Burton was fulfilled. The difficulty for Mr Adamson in his reliance on that authority is this. That authority spells out that it is necessary for a notice, if it is to be a valid notice of dismissal, to contain either a specific date or contain material from which that date is positively ascertainable. The decision does not suggest, nor could it, because it would not have been relevant or the subject of argument, that a notice which contains a specific date for termination, or information from which that date is positively ascertainable, was sufficient to become a notice of dismissal in general terms or for the purpose of section 111 (3). Burton was not a case at all about a notice which could be described as conditional or an ultimatum or which would not come into effect unless the employee did or withheld from doing something. We do not regard it as of any assistance to us in the present case.[30]In our judgment, this was not a dismissal on notice falling within section 111 (3). We take the view that, whether described as an ultimatum or a conditional notice or not, and we do not regard either expression as necessarily inappropriate, a notice which enables the employer to terminate the contract of employment only if the employee does or does not perform a particular act specified in the notice, which only he, the employee, can choose whether or not to perform, is not an unequivocal notice to terminate the employment.[31]We do not accept the submission that this notice in this case was not capable of being unilaterally withdrawn, which Mr Adamson puts forward as the key determining factor. If Somerfield had unilaterally decided that they wished to give Mr Rai a further week's grace and had so informed him before 9 April, Mr Rai could not, in our judgment, have presented an Originating Application on 9 April and complained that, despite the extension of time of which he had been informed, he had in fact been dismissed on that day, although the employers had indicated that they had no intention of terminating his employment on that day and had not done so.[32]As to the argument on statutory construction, because the letter is couched in the form of an ultimatum or a conditional or not unequivocal notice, which might or might not lead to the termination of employment without any act on the part of the employers, we do not regard the letter and subsequent termination as amounting to a termination on notice within section 111 (3).[33]We cannot see any policy reason why what Mr Adamson calls a purposive construction should be applied to this particular sub-section of the Act in these circumstances. The point never seems to have arisen for decision before; so it is not one which arises in industrial experience on a frequent basis.[34]We prefer to approach construction on the basis of the natural interpretation of the language which the statute uses; we do not regard a letter of the type here under examination as amounting to a notice for the purposes of section 111 (3), as opposed to a letter giving information to the employee that if he does not turn up for work on the date specified in the letter his employment would be terminated on that day. The Cross-Appeal[35]It is in our judgment logical next to consider the cross-appeal. Either point set out in Somerfield's Answer by way of cross-appeal would, if correct, affect what we have just said about dismissal by the employers on 9 April; for Somerfield assert, under each of the two points taken in their Answer, that the effective date of termination was not 9 April at all but, on their first point, was 22 June 2000 and, on their second point, as we have said, some time much later in May 2001.[36]The second point has now been withdrawn by Mr Eastwood and therefore we need say no more about it.[37]The first point is, in our judgment, one which cannot succeed. In Somerfield's Notice of Appearance it is accepted that Mr Rai was employed until 9 April 2001. The two letters to Mr Rai (that is to say, the undated letter and the letter of 14 May) are both written on the basis that Mr Rai was so employed. The Tribunal, at paragraph 11 of their decision, record that both parties accepted before the Tribunal that Mr Rai's employment was continuing after his demotion in June 2000.[38]Clearly on the evidence Mr Rai was not in the same position in terms of his employment between June 2000 and April 2001 as he had earlier been. The situation put before the Tribunal, however, by Somerfield was that he was, in that period, an employee in a lesser position who was simply not turning up for work. Whether that was or was not the correct analysis is now neither here nor there. That was the position put before the Tribunal by Somerfield; and the Tribunal acted on it. If the demotion was a termination, as the Tribunal found, then it must follow that there was re-employment after the termination, which continued until at least 9 April 2001.[39]But in any event, because it was not argued before the Tribunal that there had been no employment after June 2000 and the Tribunal did not test the evidence and make findings on the evidence in order to decide whether there was or was not employment between June 2000 and April 2000 (because the point was not in issue) – it is, in our judgment, plainly too late for that point to be raised now. The principles set out in Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 make it clear that, unless the circumstances are exceptional, a point which would involve investigation of factual material cannot be raised for the first time at an appellate level.[40]For those reasons the first point taken by the Respondents in the cross-appeal fails; and the second point, as we have said, has been withdrawn. Constructive Dismissal[41]Mr Rai's case is that, at the meeting on 8 March, he was treated in a very rude and abusive manner by Somerfield's representative or representatives and that he could not go back to work and therefore regarded his contract of employment as over in the light of that conduct on the part of Somerfield. We should say that the Tribunal did not make any factual findings as to this, for reasons to which we shall come.[42]The Tribunal rejected any claim based on constructive dismissal, not because they did or did not accept any evidence relating to what happened on 8 March (which indeed may not have been put before them at all), but because they found (again at paragraph 11 of their decision) that, on Mr Rai's own evidence, he took no steps and no action to show that he was treating his complaints against Somerfield as amounting to a dismissal; in other words, he had not communicated to Somerfield his acceptance of any repudiatory conduct on their part.[43]Mr Adamson submits that, in the very general statement as to constructive dismissal which the Tribunal have set out in paragraph 11 of their decision, the Tribunal have not dealt with two modes by which he suggests Mr Rai had communicated his decision to accept Somerfield's repudiatory conduct and that, if there is an arguable case that by either mode Mr Rai may be said to have communicated such acceptance with which the Tribunal have not or may not in that bold sentence in paragraph 11 of their decision have dealt, then the issue of constructive dismissal must be sent back to the Tribunal by way of remission; for, if he had so communicated by either mode, the dismissal would have been complete before he presented his Originating Application or at the precise time that he presented it; and the Tribunal would have jurisdiction because his Originating Application would not have been premature.[44]It is of course common ground that a contract of employment is not terminated by an employee by way of purported acceptance of repudiation on the part of the employer unless, by words or conduct, that acceptance has been communicated to the employer. That proposition is well-established: see for example Edwards v Surrey Police [1999] IRLR 456, in particular at paragraph 14. The issue is whether there was or may have been such communication in this case by either of the modes identified by Mr Adamson.[45]As to conduct, Mr Adamson submits that communication by that mode can be found in Mr Rai's failing to go back to work after 8 March and after receipt of the undated letter; but we are wholly satisfied that no Tribunal properly directed could so conclude. Mr Rai had been away from work from June 2000. His absence was uncertificated – he had simply stayed away. After 8 March, when he says he was so rudely treated that he could not go back to work, he did not, by any conduct, communicate to the employers that he regarded his contract of employment as at an end, still less, that he regarded it as at an end as a result of their behaviour on 8 March. He merely continued to absent himself from work as before.[46]There was, in these circumstances, plainly no conduct which could reasonably be said to amount to a communication by Mr Rai to Somerfield that he was not coming back to work because of Somerfield's conduct towards him and/or was, by reason of that conduct, treating his contract of employment as at an end.[47]The second mode of communication relied upon by Mr Adamson was the presentation of the Originating Application to the Employment Tribunal on 6 May. The difficulty about this submission, which Mr Adamson has to confront, and has sought realistically to confront, is that delivery of an Originating Application to the Employment Tribunal could not have been communication of anything to Somerfield. Of course the Originating Application would necessarily be sent to Somerfield at some time after its presentation; and, indeed, it was. But if the constructive dismissal is not complete until there has been communication, as is accepted and is common ground, it was not complete by virtue of the Originating Application until after it had been presented when the Originating Application was sent by the Tribunal to Somerfield. Thus, the Originating Application on that basis was again premature because it would have been presented at a date before the constructive dismissal was completed by communication to Somerfield.[48]Mr Adamson seeks to meet that point in two ways. Firstly, he relies on the decision of the Employment Appeal Tribunal in F C Shepherd & Co Ltd v Jerrom [1985] IRLR 275, in which the Employment Appeal Tribunal, presided over by Waite J, held that an apprentice was constructively dismissed by the employers on the day on which his Originating Application was presented to the Employment Tribunal: see paragraph 27 of the judgment in which the Employment Appeal Tribunal said: 27 "The question however of whether and when it was accepted by Mark (so as to lay the basis for a constructive dismissal under s.55 (2) (c)) is another question of fact and degree to which precisely the same considerations apply…as those just mentioned in relation to the previous submission. The Industrial Tribunal answered it by taking the issue of the Originating Application in March 1982 as the act and moment of Mark's acceptance of the repudiation. As the Tribunal of fact they were entitled to the last word on that question unless their verdict was offensive to reason. It appears to us on the contrary to have been a thoroughly sensible answer and we can see no basis in law for overturning the finding that Mark was constructively dismissed on 26.3.82."[49]There were other major issues in that case, on the basis of which the Court of Appeal overruled the decision of the Employment Appeal Tribunal. The point to which we have just referred is not mentioned in the judgment in the Court of Appeal. We have not been told whether or not the point was argued.[50]It does not seem to us that the question which is vital here in relation to Mr Adamson's submission, namely is communication to the Employment Tribunal of an Originating Application communication to the employers, was directly relevant for the purposes of the decision in Shepherd . But if it was, the point which Mr Eastwood takes and which we have set out above does not appear to have been argued, despite the experience and weight of Counsel who were in that case.[51]We do not regard Shepherd as a decision which leads us to the conclusion that presentation of an Originating Application to a Tribunal is necessarily communication to the employers on the date on which it is presented. It will inevitably reach the employers and will then become a communication to the employers; but for present purposes, whether it was communication to them on the date of presentation as opposed to later is the vital issue.[52]In our judgment, presentation of an Originating Application to the Employment Tribunal is not communication to the employers and could not be seen as being such communication and therefore we reject the argument based on the Shepherd case which Mr Adamson has put before us.[53]Mr Adamson secondly suggests and puts forward as an explanation of the decision in Shepherd , that there may be some room for the application, in the context with which we are here concerned, of what is described as the postal rule, that is to say, the rule well-known in contract law that an acceptance of an offer, so as to complete the formation of a contract, is itself complete when posted.[54]Mr Adamson acknowledges, however, that there is no reference in Shepherd to the postal rule and indeed that there is no authority either that the postal rule applies to any question arising under the Employment Rights Act 1996 in relation to the termination of a contract of employment, or, more generally, to acceptance of a repudiation of a contract as opposed to the acceptance of an offer of a contract. And in the end, Mr Adamson perhaps wisely withdrew from nailing his colours to the mast of the postal rule (if that is not a hopelessly mixed metaphor) and suggested that, while it was perhaps an explanation for the decision in Shepherd , it could not properly be applied on a wider basis.[55]We do not regard the postal rule as having any application in the present context. Our view is supported by the decision of the Employment Appeal Tribunal in McMaster v Manchester Airport Plc [1998] IRLR 112 in which the Employment Appeal Tribunal, chaired on that occasion by Morison (P), said that: "The doctrine of constructive or knowledge has no place in questions as to whether a dismissal has been communicated…" and made no reference to the use or applicability of the postal rule, although there was discussion as to what inferences one could draw as to when a document arrived in the normal course of post, which is of course a wholly different issue.[56]Thus, we do not regard there as being an arguable case here that there was communication by Mr Rai to Somerfield of his treating their conduct as repudiatory and his acceptance of that conduct as bringing the employment to an end, either in terms of his conduct or by way of his presentation of his Originating Application on the date on which it was presented.[57]Thus, the appeal on the basis of constructive dismissal must also fail. Conclusion[58]For the reasons we have set out, both the appeal and the cross-appeal are dismissed.