MR D ESTEPHANE v BARTS AND ROYAL LONDON NHS TRUST [2007] UKEAT 0102_07_2903

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0102_07_2903Case No Appeal No. UKEAT/0102/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D ESTEPHANEAPPELLANTBARTS AND ROYAL LONDON NHS TRUSTRESPONDENT
Before
His Honour Judge McMullenDate 29 March 2007
[1]APPEARANCES For the Appellant Mr D Estephane (The Appellant in Person) For the Respondent Mr A Tabachnik (of Counsel) Instructed by: Messrs Capsticks Solicitors 77-83 Upper Richmond Road Putney London SW15 2TT SUMMARY Time limits – Effective date of termination Unfair dismissal – Exclusions including worker/jurisdiction The Employment Tribunal Chairman did not err when determining for the purposes of assessing one year's continuous employment the start and end dates of the employment relationship. HIS HONOUR JUDGE McMULLEN QC The simple issue in this case is: how do you assess the one year period of continuous employment necessary for an employee to bring a claim of unfair dismissal when there are conflicts as to the start and end dates? The Appellant is the Claimant in proceedings which took place at a Stratford (E) Employment Tribunal, Chairman Mr C F Dabezies sitting alone on 28 October 2006 registered with reasons on 5 December 2006. He represented himself. The Respondent was represented by a solicitor who today instructs Mr Andrew Tabachnik of Counsel. The issue to be determined was one of jurisdiction because if the Claimant did not have one year's continuous service for the purposes of unfair dismissal under section 108 of the Employment Rights Act 1996, he could not claim. The Tribunal Chairman found against the Claimant's propositions on both dates and thus the Claimant was about TWO months short. He appeals. The case had reasonable prospects of success for it was sifted to a full hearing by HHJ Peter Clark. The parties have appeared today and have presented both written and oral arguments. The facts[2]The Claimant is a microbiologist. He was to be engaged by the Respondent at a salary of about £22,000 a year. The Respondent is a major London NHS Trust. The recruitment process required a number of steps to be taken before an appointment could be confirmed and THE chronology is important. The Claimant was interviewed on 16 December 2004, following an application form. An offer was made to him which depended on certain conditions being met. These included the taken up of references, occupational health clearance and a CRB search. The Trust wrote to him on 29 December 2004, congratulating him on his appointment conditionally on the above terms and looking forward to his acceptance which would be provided on an acceptance slip. The Claimant says he did fill in a slip but there is no copy of it. Instead, there is a form signed by him on 23 January 2005 which is called "staff appointment acceptance form". It seems to me from the background to this case that this was the form which would start the process. The offer which is accepted is to commence employment on 7 February 2005 and the question which follows is this: "if you are not available on this date please suggest an alternative starting date", and here the Claimant has written 25 February 2005.[3]Other information was required. The Respondent received this on 25 January 2005 but it is a large organisation. It appears that the left hand did not precisely know what the right had was doing because on that date there was a check of the various conditions having being met so that the "successful candidate checklist" was available to be completed. This form includes both the proposed start date 7 February, and alternative start date 14 February 2005 written in manuscript. The form reveals that various references had been taken out and that the Claimant has accepted the offer. At that stage, therefore, there is not a meeting of the minds, for although each is prepared to offer and to work respectively on the terms, the day on which the contract is start is not agreed. That is because the Trust has to conduct an induction programme for all new employees. It is led by the Chief Executive and Directors of the Trust. It is said to be a valuable opportunity to find out about the Trust. This was set up for 7 February but the Claimant had said he could not do that. It appears from this document, also dated 25 January, that every new employee has to go through the induction before they start working on the site and that was the evidence of the Respondent.[4]The Respondent, as one would expect, sends to its new employees a written statement of terms and conditions pursuant to section 1 of the Employment Rights Act 1996 . It did so twice. On the first occasion, the document specified a start date of 7 February 2005. It is signed by the Claimant as being correct on 1 February 2005. I was asked to make an inference about this document which is that, at the time it was sent, the sender did not have in his or her possession the Claimant's acceptance form indicating that he could not start on 7 February but suggested 25 February; for otherwise a different date would have been inserted. There would be no point in insisting on the original date which had been offered for induction when the Claimant had said that he wanted to start on 25 February. 25 February was not an induction day but 14 March was.[5]The Claimant did not stop work in his old job. He was not paid in the new job at any time until 14 March. On 14 March he then signed a document in identical form as a statement of main terms and conditions of employment, except for the date of signature, and the date of commencement of employment, again 14 March. That date appears in at least five places. The rates of pay are set out. The holiday provision is of 27 days. The minimum period of notice is four weeks on either side by contract. The minimum statutory period of notice for someone who has worked for over four weeks but less than two years, is one week. It was accepted as follows:
"I accept this appointment on the Terms and Conditions of Employment as set out above. I accept that this statement of main terms and conditions of employment replaces any existing statement of main terms and conditions I may have with Barts and the London NHS Trust."
[6]The Tribunal Chairman considered that the start date for the purposes of section 211 of the Employment Rights Act 1996 was 14 March 2005. Section 211 provides as follows:- "211 Period of continuous employment (1) An employee's period of continuous employment for the purposes of any provision of this Act- (a) (subject to subsections (2) and (3)) begins with the day on which the employee starts work, and (b) ends with the day by references to which the length of the employee's period of continuous employment is to be ascertained for the purposes of the provision.[7]The contract ended by summary dismissal of the Claimant on 25 January 2006 just short of a year later. The letter of dismissal makes it clear that the employment will end with immediate effect:
"As a consequence you are summarily dismissed from the employment of the Trust with immediate effect (Wednesday 25 January 2006)… "
Summary dismissal is dismissal without notice. You will receive pay up to and including 25 January 2006 and your final pay slip and P45 tax form will be dealt with by the Payroll department"[8]There was a right of appeal. The Trust maintains records of termination and in the Claimant's case for the purposes of calculation of final pay it is noted that his last working day is 25 January 2006 and his last day of service is 10 February 2006. In respect of the passage "payment in lieu of notice" there is this inserted in manuscript:
"12 days leave owed as payment"
. It is signed by the relevant officers on 3 and 7 February 2006. The Payroll department also issued the P45. The P45 indicates that the leaving day is 10 February 2006. Thus the Claimant argued before the Chairman that he was employed up until 10 February 2006 as to which he found some sympathy because the Chairman said this:- "2. In order to determine that point the Tribunal has to decide both the commencement date and the termination date of the Claimant's employment. Taking the latter first, in my judgment that correct date is 25 January 2006. There are various references in pay-related documents, including the P45, to 10 February 2006. I accept that those references might reasonably confuse an employee and that they are unfortunate, but nonetheless it is clear that the Claimant was summarily dismissed on 25 January 2006 and that he was aware of that. There is no evidence that that decision was ever rescinded or varied. The additional period to 10 February is expressed by the Respondent to be explained by references to accrued holiday pay. I accept that explanation, albeit the calculation is not before the Tribunal and should have been. The date is not referable to any other period, for example, a notice period. It would be a purely arbitrary date were it not referable to accrued holiday pay. While it is a potentially misleading in administrative method of expressing final pay, I do not consider that it alters the date of termination."[9]Thus the Chairman adopted the view offered by the Respondent as an explanation that the additional days following the summary dismissal were accounted for in terms of pay by way of holiday. I have seen the witness statement of the relevant officer who explains that and if indeed one looks at the calendar, the Claimant was paid 12 days beyond 25 January which takes him up to 10 February in working days. If indeed he was owed 12 days for untaken but accrued holidays then it would be subject to tax. On that basis the Claimant's date of termination was 25 January 2006 The submissions[10]The Claimant contends that the written material discloses that he was an employee up to 10 February 2006. He argues that the Respondent has expressed him to be an employee up to that date and it should be tied to that. He was entitled to holiday, he could have taken that holiday and he was employed up to that time. As to the start date, he contends that the contract was formed by his signing and sending back the acceptance form which took place on 23 January 2005 and therefore that, or the date of its receipt, 25 January 2005, was the date on which he started work for the purposes of section 211. Alternatively he argues that the date was 7 February which was the date offered by the Respondent for him to start, and which he then agreed to do in writing on 1 February having initially suggested an alternative date and said that he was not available on 7 February. If he is right about the start date being 25 January then on the Chairman's finding the Employment Tribunal would have jurisdiction but if he is wrong about the start date he will fail. If he is wrong about the termination date he will also fail.[11]I did not need to seek Mr Tabachnik's help on behalf of the Respondent beyond his written argument which I accept. Conclusions[12]The start date could not be 23 or 25 January 2005. That is the date on which the contract was made, but it does not say when continuous employment began. It is not right that the mere agreement to employ and to be employed constitutes at that moment the formation of the employment relationship. A contract is undoubtedly made but it is not a contract that requires the Claimant to begin work for the purposes of establishing continuous employment. There may consequences for the parties if the employer or employee subsequently withdraws from the contract but it does not put the Claimant into continuous employment.[13]A better candidate is 7 February. This was the date which Mr Tabachnik accepts he would not be averse to my finding was the date on which there was a contract. This leaves aside the complication introduced by the Claimant's actions in rejecting 7 February and suggesting 25 February. He subsequently signed a statement of terms agreeing to 7 February and thus there might well be a contract on that date. On the other hand, since it was a condition of employment that induction must precede the start of work, I agree that 14 March was the correct date for the purposes of section 211. That is exemplified by the substitution of the later statement of terms and conditions signed by the Claimant for the earlier one.[14]It is clear to me that the agreement which was reached initially was for the Claimant to take up employment pursuant to the offer and acceptance completed on 25 January 2005. A detail such as the start date was left open. The parties were not in agreement and the reason for the disagreement was because the Claimant had declined the start date offered by the Respondent and had suggested a different date. By 1 February 2005 ostensibly the Claimant had changed his stance for he had signed the statement of terms which stipulates the start date as 7 February 2005. But he did not start work on 7 February, he did not attend the induction course which is a requirement of all employees and so he did not start work on that date. When was it? It was 14 March 2005, when he attended the induction course and signed the replacement terms and conditions and began to earn money. Whatever may have been the status of the first statement of terms and conditions it was replaced, as is expressly avowed, by the second which stipulates 14 March 2005.[15]It is unnecessary, therefore, for me to decide the second issue which is when was the termination date, for on any account he had less than one year's service. In deference to the arguments, in my judgment the termination date was 25 January 2006. I agree with the Chairman in his experienced judgment on this matter that the documentations in this case caused confusion and was unfortunate. The documentation for the staff termination form expressing last day of service would not be available to the Claimant (it is an internal document). The P45 was, and that shows he was continued in employment until 10 February. However, that is not the correct factual analysis. The Chairman found that the Claimant knew that he was dismissed summarily on 25 January 2006. That is a term known in the law but it is spelled out in the letter of dismissal. The employment ended forthwith on 25 January 2006 by reason of the rupture of the relationship's term of trust and confidence. It could not survive the meeting and that letter. The fact that subsequent payments were made does not elongate the period of employment; for example, the Respondent could have decided to pay the employee a little more until the end of the month or to pay holiday pay. Summary dismissal is one which is without notice. It is said there has been no trial, but there was no doubt in the Chairman's mind that the Claimant knew that his employment had come to an end on 25 January and he was right so to find. The Trust was right to pay holiday pay. There is no issue that the Claimant was entitled to 12 holiday days. The Chairman could not find any other reference point to which the additional 12 days could be attached save for that expressed in the explanation of the Respondent. It certainly did not tally with the notice period set out in the contract of employment and thus the Chairman came to the correct conclusion on the date of termination.[16]Thus I hold that the chairman was correct to hold that those were the start and end dates. I would like to thank both Mr Estephane for his very articulate written and oral submissions and of course Mr Tabachnik. I have said nothing about the underlying dispute in this case which remains unresolved because there will be no trial. A simple resolution of this issue is that the Tribunal had no jurisdiction to hear it. The appeal is dismissed.