MR S S SAMINADEN v BARNET ENFIELD AND HARINGEY NHS TRUST [2008] UKEAT 0018_08_0707

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0018_08_0707Case No Appeal No. UKEAT/0018/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S S SAMINADENAPPELLANTBARNET ENFIELD AND HARINGEY NHS TRUSTRESPONDENT
Before
His Honour Judge BurkeDate 7 July 2008
[1]APPEARANCES For the Appellant MR S SUBBARAYAN (Representative) For the Respondent MR N SCAMPION (of Counsel) Instructed by: Messrs Bevan Brittan LLP Solicitors Fleet Place House 2 Fleet Place Holborn Viaduct London EC4M 7RF SUMMARY UNFAIR DISMISSAL: Dismissal/ambiguous resignation JURISDICTIONAL POINTS: Claim in time and effective date of termination The Claimant claimed unfair direct dismissal and constructive dismissal and unlawful deductions. The ET at a PHR dismissed (with costs) his unfair dismissal claims on the grounds that the Claimant had not been dismissed and were, in any event, out of time. He had been dismissed for misconduct, on appeal, demotion was substituted for dismissal; but the Respondents could only demote if the Claimant agreed. He was directed to work in the demoted post – which he did under protest, before leaving. His first ET1 was not accepted by the Employment Tribunal on the ground that he had not satisfied the Dispute Resolution requirements; he did so and presented a second ET1. Held(1) (i) The provision that demotion could only take place with the Claimant's agreement had the effect that, absent such agreement, this was not a Roberts v West Coast Trains type case but was closer to Hogg v Dover College (ii) the finding that the claimant had agreed was perverse (iii) therefore he had been dismissed.(2) The second claim was not out of time; time was extended by Regulation 15 of the Dispute Resolution Regulations.(3) The Employment Judge had omitted in any event to deal with the Claimant's constructive dismissal claim based on his assertion that the entire disciplinary process was a sham. Appeal allowed. Case remitted to the Employment Tribunal to hear on merits. HIS HONOUR JUDGE BURKE QC The history of this appeal This is an appeal by the Claimant, Mr Saminaden, before the Employment Tribunal, against the judgment of the Employment Tribunal at Watford, in the person of Employment Judge Postle sitting alone, at a pre-hearing review on 20 September 2007; the judgment was sent to the parties on 29 October 2007. By that judgment the Tribunal dismissed, on the basis that there was no jurisdiction, Mr Saminaden's claim against Barnet Enfield and Haringey NHS Trust that he had been unfairly dismissed. We will, in this judgment, call Mr Saminaden "the Appellant" and the Trust "the Respondent".[2]The Tribunal rejected the Appellant's claim on two bases, the first being that he had not been dismissed and the second being that, if he had been dismissed, his claim was presented out of time. Both limbs of the Tribunal's decision are attacked by this appeal.[3]There is some history to these proceedings which needs to be set out, at least in brief terms. The Appellant presented a claim to the Employment Tribunal on 29 August 2006 in which he set out a number of claims. He said that he had been employed by the Respondent from 1999 until 30 May 2006 as a Charge Nurse. At paragraph 3.3 of the claim form, in response to the question, "Is your claim, or part of it, about a dismissal by the Respondent?" he put a tick against the word "yes" rather than against the word "no". The form went on to say this:
"If your claim is about constructive dismissal, i.e. you resigned because of something your employer did or failed to do which made you feel you could no longer continue to work for them, tick the box here and the 'Yes' box in section 3.4."
The Appellant ticked the "yes" box in section 3.4; but he did not give any details or fill in answers to the question under section 5 of the form, at paragraph 5.1, which asked him to explain why his dismissal was unfair. Under paragraph 9, 'Other Complaints', he set out a number of complaints, including a claim for unpaid wages, but also said that he had been removed from his band 6 post to a band 5 post, which he asserted was a breach of contract, and said, "Wrongful dismissal".[4]That claim form was rejected by the Tribunal under the rules because there was insufficient detail in it about steps taken prior to making the claim as prescribed by section 32 of the Employment Act 2002 and/or by the Employment Act 2002 ( Dispute Resolution) Regulations 2004 . When it was rejected, the Appellant was informed by a letter from the Tribunal dated 30 August of the rejection, or to be more technically correct non-acceptance, of his claim form; the letter said that his form was being returned to him and continued:
"If you wish to continue with your claim you must provide this information and return the form to the Tribunal office at the address above quoting the pre-acceptance number. Please note that the original time limit for commencing these proceedings has been extended by three months to allow you to carry out these necessary steps. However, you should submit your written statement of grievance to your employer as soon as possible, and in any event not later than one month after that original time limit expired."
[5]The letter informed the Appellant of his right to pursue a review of the non-acceptance of the claim form; but he did not seek such a review. Instead he presented a second claim form on 6 November 2006 in which he ticked, as before, boxes 3.3 and 3.4, but also under section 5 set out reasons why he claimed that he had been unfairly or constructively dismissed. He also made claims, in both claim forms, for breach of contract and for payment in respect of the month of May 2006 of salary at the level appropriate to band 6 employment as opposed to that appropriate to band 5 employment.[6]Whereas in the first claim form the Appellant said that his employment had ended on 30 May 2006, and added these words, "Please note I am still working at a lower grade from 1 August 2006," he did not insert those words into the second claim form. In the details of his unfair dismissal complaint in the second claim form, he asserted, in effect, that he had been unjustifiably demoted after an appeal against being dismissed for disciplinary reasons.[7]Originally, the Respondent failed to put in a response to the second claim in time. No response was required to the first claim because it had not been accepted by the Tribunal. The failure to respond to the second claim caused a judgment in default to be entered. However, on 8 May 2007, the Tribunal, at a review hearing, set aside the judgment in default and, in the light of the response which the Respondent indicated it would put in if permitted to do so, the Tribunal ordered a pre-hearing review to decide six issues, identified in the first two pages of the review judgment. Those issues were: a) Whether the Tribunal had jurisdiction to consider the unfair dismissal claim where the Claimant has been reinstated by the Respondent, considering, in particular, the case of Roberts v West Coast Trains [2005] ICR 254 . b) Whether the unfair dismissal claim was out of time. c) Whether the claim for unfair dismissal had any reasonable prospect of success. d) whether the Appellant was entitled to bring a breach of contract claim when he remained in the employment of the Respondent. e) Whether his claim for unlawful deduction of wages was compliant with Section 32 of the 2002 Act. f) Whether his claim for monies due to him stood any reasonable prospect of success.[8]The unlawful deduction of wages claim related to May 2006; and it soon became clear that the monies which he claimed to be outstanding for that month had been paid to him. It is common ground, that by the time the matter reached the pre-hearing review before Employment Judge Postle, that claim had been disposed of.[9]The Employment Judge, at the pre-hearing review, dealt with issues as to dismissal and time but did not deal with any separate argument that, if the Appellant were able to argue successfully out of the problems which confronted him in relation to dismissal and time, there was a separate case to be considered that his claims had no reasonable prospect of success.[10]It is the judgment of the Employment Judge on the pre-hearing review as to the dismissal issue and the time issues which is the subject of the present appeal, permission to go through to a full hearing having been given by the Employment Appeal Tribunal, presided over by Langstaff J, on 16 April 2008. The facts[11]The Employment Judge heard evidence from the Appellant and from Ms Muirhead, an Assistant Director of Human Resources, on behalf of the Respondent. We can shortly set out the facts, as he found them to be, based on the evidence he heard and read. The Appellant was dismissed for misconduct on 30 May 2006 after disciplinary proceedings. He appealed; and on 25 July 2006 he was informed that his appeal had been successful in that the Respondent proposed to substitute for the sanction of dismissal a final written warning and a downgrading from his band 6 post to a band 5 post. It is common ground, although the Employment Judge did not refer to this (and we say that in no critical sense), that a band 5 post involves less responsibility than and different duties from those of a band 6 post. More significantly, perhaps, there is a salary difference between the two bands of somewhere between £5-6,000 per annum.[12]The Respondent contends that this downgrading fell within the Respondent's disciplinary policy and procedure, which, it was common ground, had contractual effect as part of the contract of employment. Paragraph 4.1 of that procedure set out four stages for disciplinary action, stage 1 being a verbal warning, stage 2 a written warning, stage 3 a final written warning; and stage 4 dismissal. Paragraph 4.4 read as follows:
"Exceptionally as an alternative to dismissal, downgrading and/or transfer may be considered. Downgrading will require the written agreement of the employee concerned. Where such action is implemented it will not preclude the employee from being considered for promotion at some later stage to enable them to return to their original grade."
Paragraph 12.4, dealing with appeals, said:
"When hearing an appeal the panel will have the following options available to it: a) Uphold the appeal and overturn any disciplinary action taken b) Determine that the outcome did not match the breach of the Trust Disciplinary Rules and recommend a less severe outcome c) Reject the appeal and confirm the appropriateness of the outcome."
As will be seen from paragraph 4.4 as we have set it out, unusually - indeed in our combined experience uniquely - the provision for downgrading or demotion as a substitute for dismissal was expressly limited to cases in which the employee gave his written agreement.[13]On 1 August 2006 the Appellant received a letter informing him that, from 1 June, his contract of service would be changed so that he was on band 5. He was asked to sign and date a slip at the foot of the letter indicating that he accepted that change. He had already, in the letter informing him of the result of the appeal, been instructed to report on 1 August to his assigned place of work and duties, meaning, it is common ground, to his assigned place of work and duties on band 5.[14]The Appellant, on 1 August, replied as follows:
"I was told to report to you for duty today at 2.00pm by Mr Roy Bohrer which I have done under duress. I wish to inform you that I will be instigating a grievance procedure as per the appeal policy in the near future."
[15]The Employment Judge did not make a finding as to whether the Appellant had signed the slip at the foot of the 1 August letter. He said, at paragraph 3.4, that no copy of this slip as signed could be found in the Respondent's Human Resources Department; but it is not the Respondent's case that the Appellant did sign the slip; there was no evidence that he did; no such evidence was before the Tribunal. However, the Tribunal found that the Appellant, having turned up for duty on 1 August as ordered, proceeded to work under the new conditions until going off sick on an unspecified date relatively soon afterwards. The Employment Judge did not make a finding as to the length of the period of his work at the new band or as to when he went off sick; but he never returned to work.[16]On 29 August Mr Subbarayan, who has represented the Appellant at the pre-hearing review and before us, first came onto the scene. He has a law degree but has no legal professional qualification; he is a race equality officer and a personal friend of the Appellant. On that date he wrote a long letter to the Respondent in which he explained that he had been appointed by the Appellant to look after his dismissal, downgrading, unpaid wages, final warning and humiliating treatment and set out at length the content of the Appellant's grievance about what had been done to him. We do not propose to go through the detail; suffice it to say that the letter complained that the whole disciplinary process was flawed, had been pursued for improper purposes, had reached unjustified conclusions on false or insufficient evidence or both and that the Claimant had been unfairly dismissed. That letter was accompanied by a letter of authority from the Appellant, signed by him, expressly appointing Mr Subbarayan to deal with any matters relating to his unpaid wages, his dismissal, and his demotion by the Respondent.[17]Surprisingly the Respondent replied to the Appellant saying, in effect, that it could not pay any heed to correspondence from Mr Subbarayan. The Appellant then pursued correspondence about his grievance in his own name, although one suspects that the letters were written either by or with the assistance of Mr Subbarayan; but, to put matters briefly, the Respondent simply failed (and we do not know and for present purposes have not sought to discover why) to process the Appellant's grievance at all. The original letter of 29 August was also accompanied by formal copies of grievance procedure forms. The correspondence to which we have referred having made no progress, the second claim form was presented on 6 November. The Tribunal's conclusions[18]Rather than seeking to summarise the Employment Judge's brief conclusions, it is perhaps more helpful to set them out. On the dismissal issue the Employment Judge's conclusions were at paragraphs 4.1 to 4.5 as follows:
"4.1 Firstly, so far as the law is concerned under Section 95 of the Employment Rights Act 1996, namely circumstances in which an employee is dismissed. Sub Section 1 states – for the purpose of this part an employee is dismissed by his employer if (and, subject to Sub Section (2):- only if) – (a) the contract under which he is employed is terminated by the employer (whether with or without notice). Therefore clearly if the contract under which an employee is employed is not terminated by the employer, then such an employee has no right to claim unfair dismissal. 4.2 Counsel for the Respondent is quite right in submitting that the authority of Roberts v West Coast Trains (2004) EWCA Civ 900 is clearly authority for the proposition that there is no dismissal if an employee is dismissed and that decision is altered by an internal Appeal decision substituting a reduction in grade and final written warning provided that action taken by the employer is permitted within the term of the employee's contract. 4.3 n this case the Claimant was clearly dismissed, that decision was supplanted by an internal Appeal decision substituting a reduction in grade and a final written warning. If one looks at the Trust's disciplinary policies and procedures, that action is clearly permitted within the terms of the employee's contract. 4.4 So far as the demotion is concerned and the requirement to have the written agreement of the Claimant, it is clear by the Claimant's actions by presenting himself for work and thereafter working under the new terms and conditions and his letter confirming his attendance at work albeit under duress, was in effect his written agreement. So far as the specific amendment to the contract, it is not clear whether that was ever signed by the Claimant and returned or received by Human Resources. However, we do have the signed letter of the Claimant dated 1 August confirming his intention to report for duty on the day. 4.5 In the above circumstances then clearly the Tribunal has no jurisdiction as there has been no dismissal."
[19]As to time, the Employment

Judge said at paragraph 4.6:

"4.6 Even if the Tribunal were wrong in that assessment and for example the Claimant had been dismissed, the Claimant has the additional hurdle of being just over two months late filing his claim, particularly his dismissal took place originally on 30 May, therefore the last date for filling any claims was 29 August and the Claimant did not file this claim until 6 November. In this Hearing, the Claimant has produced no evidence to me that it would not have been reasonably practicable for him to have issued the claim within the three month period. During that period and for the Appeal Hearing the Claimant was, after all, being advised by his Trade Union."
[20]As to the breach of contract claim, the Employment

Judge said at paragraph 4.7:

"4.7 So far as the breach of contract claim is concerned, clearly as the Claimant was not dismissed the Tribunal has no jurisdiction to entertain a breach of contract claim where an employee is still employed."
Unfair dismissal - the Appellant's submissions[21]The Appellant has been represented before us by Mr Subbarayan to whom we are grateful for his careful and deeply researched arguments. The Notice of Appeal contains 11 paragraphs, many of which relate to the time issue and to issues as to costs, to which we will come later. As the argument developed before us, the following points emerged (in summary form):(1) The Appellant clearly raised a case of dismissal and constructive dismissal in both claim forms. The demotion could not be imposed without the Appellant's written agreement; but he never accepted or agreed the demotion in writing or otherwise and worked from 1 August only under protest. He had therefore been dismissed from his grade 6 post, or had been constructively dismissed by the Respondent's unlawful imposition upon him of a grade 5 post, which he had never accepted. The Tribunal ought not to have applied Roberts v West Coast Trains , but ought to have considered and applied the decision of the Employment Appeal Tribunal in Hogg v Dover College (1989) ICR 39 and other authorities supporting the principle that, if an employee works on under protest when his employer seeks to impose an unlawful change in his terms and conditions of employment, which change would operate as a repudiatory breach of that contract, the employee is not to be taken to have affirmed the contract and may claim that he has been dismissed from his original post or that the imposition of the new post was a repudiation of his contract of employment, which it is open to him to accept.(2) The only method of potential acceptance of the band 5 post, under the contractual terms which applied in this case, was that stipulated by the contract, namely written agreement, and written agreement was never forthcoming.(3) For those reasons the Employment Judge was wrong to reject the case that the Appellant had been dismissed.(4) The Employment Judge, in any event, did not consider the case of constructive dismissal, which was pleaded in the second claim form, that the whole disciplinary procedure constituted a repudiation of the Appellant's contract, for the reasons we have summarised earlier, and gave him the right to treat his contract as at an end and to claim that he had been constructively dismissed. Unfair dismissal - the Respondent's submissions[22]Mr Scampion on behalf of the Respondent submitted:(1) This is not a case in which the employee's previous contract was terminated or withdrawn by the Respondents. The act of the Respondents in the downgrading of the Appellant was an act within the express terms of the contractual disciplinary procedure and could not constitute a breach of the contract of employment.(2) That was because, although the Appellant had not returned the slip or otherwise in writing formally accepted the band 5 post, the Employment Judge, having considered the issue of agreement as he was bound to do, found in paragraph 4.4 as a fact that, by his letter of 1 August and by continuing to work under the new terms, the Appellant had given that written agreement. That was a finding of fact open to the Tribunal and was not and could not be said to have been perverse.(3) Therefore, this was not a case which fell within the Hogg v Dover College principle, but one that fell fair and square within the principle in Roberts .(4) Alternatively, if the Employment Judge was in error in concluding that there had been an agreement in writing to the downgrading on the part of the Appellant, the purpose of the requirement in paragraph 4.4 of the disciplinary procedure that there had to be a written agreement from the employee to downgrading was to provide the Respondents with written evidence that he had so agreed as a tidying-up procedure, as an exercise in securing the appropriate paperwork. Those words did not confer any benefit on the employee but only conferred benefit on the employers and, therefore, could be waived or not enforced by the employers.(5) Alternatively, the Appellant was estopped from relying on his failure to provide written agreement to the downgrading by his representation by the letter of 1 August and his carrying on working that such written agreement would not be required, on which representation the Respondents had relied.(6) As a further alternative, the Appellant had waived the requirement of written agreement.(7) On all of these arguments the Tribunal's correct conclusion, or at least a conclusion, which it was open to them to reach, was that this was a case in which the Appellant was bound by the downgrading; the principle in Roberts applied precisely. The initial dismissal had been erased by the downgrading, which had been accepted; there was no dismissal. Our conclusions[23]In Roberts the employee was dismissed for misconduct. Pending his appeal he was suspended without pay. While thus suspended he presented his unfair dismissal claim to the Tribunal; but his appeal was successful, his dismissal was reduced to a demotion together with a final written warning. However, the employee never returned to work; he did not resign but ultimately was told that his employment would be treated as terminated by his failure to return to work. The Employment Tribunal concluded that the employee had not been dismissed. That conclusion was upheld by the Employment Appeal Tribunal and the Court of Appeal. The ratio of the Court of Appeal's decision is to be found in the judgment of Mummery LJ, with whom Arden LJ and Gage LJ agreed, at paragraphs 22 to 25 as follows:
"22. It was held by the appeal tribunal, correctly in my view, that the decision on the internal appeal was not a matter of creating a new contract for a new position: it was a question of giving effect to a decision to apply a different sanction on appeal than had been applied at first instance. The sanction applied on appeal was one specified in the existing contract. Within that existing contract it was possible to demote Mr Roberts without terminating his existing contract and without making an offer to enter into another contract re-engaging him into a different position. 23. The Employment Appeal Tribunal also dealt with another submission made, and repeated by Mr Clement in this court, that the jurisdiction of the Employment Tribunal to hear the claim of unfair dismissal was established at the moment when the application making the complaint of unfair dismissal was presented to the Employment Tribunal. Mr Clement's submission was that, at the date when the complaint was filed with the Employment Tribunal, on 5th February 2002, Mr Roberts was still dismissed, as notified in the letter of 8th November 2001. Nothing done by the internal appeal body altered that position at that date. He submitted that it was not relevant for the Employment Tribunal to consider what had happened after the issue of the complaint. The Employment Appeal Tribunal came to the conclusion that the decision of the appeal body had retrospective effect, so that Mr Roberts was to be treated, in the light of its decision to demote him, as if he never had been dismissed in November 2001. The fact that an ET1 complaint form had been lodged between the initial dismissal and the subsequent demotion on the appeal decision was an irrelevant factor, either in deciding whether or not he was dismissed for the purposes of an unfair dismissal claim, or whether the Employment Tribunal had jurisdiction to entertain the claim. 24. I agree with everything that was said by the Employment Appeal Tribunal in their decision rejecting the appeal by Mr Roberts. It follows that I would dismiss this appeal. There was no error of law in the Employment Tribunal's decision that Mr Roberts was not dismissed, so as to entitle him to pursue a complaint of unfair dismissal in the Employment Tribunal after the outcome of his internal appeal was notified in February 2002. I agree with the submissions on behalf of West Coast Trains Limited by Miss Tether. I would simply highlight the following points: (1) The employment contract of Mr Roberts included provisions in the staff handbook, in the Onboard Terms and Conditions and in the Procedure Agreement, which entitled West Coast Trains to impose a range of sanctions when disciplining an employee for misconduct. That range could be imposed either at first instance or on an appeal brought by an employee, who was dissatisfied by the first instance decision. (2) The range of sanction included dismissal. That was the sanction imposed at first instance and was effective at the date when Mr Roberts presented his complaint of unfair dismissal to the Tribunal. (3) The range also included reduction in grade or demotion. That was the decision ultimately taken on Mr Roberts's appeal. (4) The outcome of the appeal procedure initiated by Mr Roberts, and not withdrawn by him before the completion of the appeal procedure, was that the decision to dismiss should be replaced by a decision to demote. (5) The terms of Mr Roberts' employment contract permitted West Coast Trains to impose such a sanction in place of the earlier decision to dismiss, so that they could retrospectively achieve a position where he was not dismissed for the purposes of bringing an unfair dismissal claim. (6) It was within the terms of that contract that the appeal decision was taken. It was not necessary to effect an express reinstatement to the position of chef previously held by him, nor was it necessary to make an offer to him to enter into a new contract in order to continue Mr Roberts' contract of employment. 25. In my view, there was a misunderstanding on the part of Mr Roberts in thinking that, when he received the notification of the appeal decision, he was being made an offer, which he could accept or reject. What was being notified to him, as was made clear in a later letter, was the continuation of the contract. He acted as if the contract was being continued when sick notes were submitted by him after the date of the appeal decision."
[24]Those paragraphs can be summarised in this way:(1) The lesser sanction of demotion, permitted within the terms of the contract of employment, erased the initial dismissal and did not itself constitute a dismissal; for the employers were contractually entitled to demote.(2) The fact that the claim form was lodged between the initial dismissal and the demotion on appeal was irrelevant.[25]There are important distinctions between Roberts and the present case. They are:(1) In Roberts the contractual provision entitling the employer to substitute the sanction of demotion for that of dismissal did not require the agreement of the employee. There was no offer of re-engagement in a different post when the employers demoted the employee.(2) The employee in Roberts did not accept the new position under protest; he simply absented himself from work.(3) The employee did not put forward a case of constructive dismissal based on the demotion (see per Arden LJ at paragraph 35):
"As Miss Melanie Tether for the respondent points out, there was nothing to prevent the appellant from complaining of constructive dismissal when he learned of the decision on appeal to substitute demotion. He did not take this course but the possibility was available to him to ask the Tribunal whether demotion was available to the respondent under his contract. I too would dismiss this appeal."
[26]In Hogg v Dover College [1990] ICR 39 the employee was a full-time teacher whose activities became severely restricted by ill health. The employers decided that as a result he would be demoted to a lesser post with a reduced teaching load and reduced salary. He replied through solicitors that he would work on the new terms without prejudice to his claim for wrongful and unfair dismissal from his previous post. The Employment Tribunal held that, having worked on the new terms, he could not claim that he had been directly or constructively dismissed. The Employment Appeal Tribunal, presided over by Mr Justice Garland, allowed the employee's appeal.

(e) to 43 (c):

"Up to 31 July, the applicant, who was well and sympathetically treated by the employers, was head of history; he was employed to teach full-time at a full salary plus such allowances to which he was entitled. On 31 July, he was told that he was no longer head of history; that he would not be employed full-time and he would come down to eight periods a week plus general studies and religious education; that the salary he would receive would be exactly half the new scale which superseded the Burnham scale. It seems to us, both as a matter of law and common sense, that he was being told that his former contract was from that moment gone. There was no question of any continued performance of it. It is suggested, on behalf of the employers, that there was a variation, but again, it seems to us quite elementary, that you can vary by consent terms of a contract, but you simply cannot hold a pistol to somebody's head and say: "henceforth you are to be employed on wholly different terms which are in fact less that 50 per cent. of your previous contract."
We come unhesitatingly to the conclusion that there was a dismissal on 31 July; the applicant's previous contract having been wholly withdrawn from him. Even if we were wrong about that, we would take the view that there was a constructive dismissal under section 55(2)( c ) because the industrial tribunal found, and this is also a matter of law, that there were fundamental changes in the terms offered to the applicant - I will not repeat how fundamental they were. The question then arises whether he accepted the employers' conduct as a repudiation of their obligations to him or whether it has to be said that by his conduct there was, in the event, no acceptance or indeed, an affirmation. Of course, one asks: affirmation of what? It could only be of a totally different contract. This is not the affirmation of the continuance of the contract where one term has been broken; this is a situation where somebody is either agreeing to be employed on totally new terms or not at all. I have already drawn attention to what happened - his solicitors wrote on 4 September alleging that he had been dismissed; on 7 September they wrote again, in the terms which I have already read out, saying that he would accept the new terms without prejudice to his claims and on 19 October he issued his IT1. When he dealt with the matter, in evidence, he said:
'I do not think I could have worked full-time when I came back after illness. I worked 11 periods at first and then after January 1986, went up to 16 periods. When I received the letter of 31 July, there had been no previous discussions on those points. I took the view that I had been sacked from Dover College and offered a part-time job. The offer made to me was marginally better than receiving social security benefits; by taking the part-time employment, that did not alter my view that I had been dismissed.'
We wholly concur with that summary of the situation. It seems to us to represent the legal reality of what in fact happened."[27]At paragraph 43(g) they said:
"That does not seem to us really to be looking at the matter in sufficient detail. The question is not whether the relationship between the parties has ceased; the question is not whether there was any contract between the parties; the question is whether the particular contract under which the employee was employed by the employer at the relevant time was terminated by the employer. That seems to us to encapsulate the principle to be applied here. Was the particular contract under which the employee was employed by the employer at the relevant time terminated by the employer?"
At paragraph 44(e) they said:
"At the end of the day, the position seems to us perfectly clear. There was here a dismissal. If we are wrong in our view in that respect, there was clearly a constructive dismissal because the applicant accepted the employers' conduct as repudiatory and cannot, by his subsequent conduct, be said to have affirmed the original contract or any original contract as varied."
[28]It should be noted that the demotion in Hogg was not authorised by any contractual term and was not by way of disciplinary sanction.[29]The third authority to which we were referred on this issue is Alcan Extrusions v Yates and others [1996] IRLR 327, in which the employers had sought to impose on the employees a new shift pattern and changes in payments and holiday entitlement. The employees said that they regarded these changes as a fundamental breach of their terms and conditions of employment and would work to the new terms only under protest and without prejudice to their rights to claim unfair dismissal. The EAT, presided over by HHJ C Smith QC, rejected the employer's appeal against the Employment Tribunal's conclusion that, following Hogg , the employees had been dismissed. At paragraphs 23 and 24 the EAT said:
"23. We entirely agree with counsel for the appellants that it is only where, on an objective construction of the relevant letters or other conduct on the part of an employer, it is plain that an employer must be taken to be saying, 'Your former contract has, from this moment, gone' or 'Your former contract is being wholly withdrawn from you' that there can be a dismissal under s.55(2)(a) other than, of course, in simple cases of direct termination of the contract of employment such words as 'You are sacked'. Otherwise, we agree with him the case must stand or fall within s.55(2)(c). 24. However, in our judgment, it does not follow from that that very substantial departures by an employer from the terms of an existing contract can only qualify as a potential dismissal under s.55(2)(c). In our judgment, the departure may, in a given case, be so substantial as to amount to the withdrawal of the whole contract. In our judgment, with respect to him, the learned judge in Hogg was quite correct in saying that whether a letter or letters or other conduct of an employer has such an effect is a matter of degree and, we would hold accordingly, a question of fact for the industrial tribunal to decide. We fully accept that in many cases to construe letters or other conduct on the part of an employer which puts forward no more than variations in a contract of employment as amounting to a termination or withdrawal of such a contract would be quite inappropriate and wrong. But in our judgment, counsel for the appellants was driven to the untenable position, as we believe it to be, that even very substantial departures from an original contract of employment could never amount, on an objective construction, to the termination of the original contract and its replacement by the offer of a different and inferior contract of employment but must always be characterised as breaches of the original contract."
[30]It is no doubt from this authority that Mr Scampion derived his submission that the circumstances of this case did not amount to a termination or withdrawal of the band 6 job, but amounted only to a breach (if there was one) of a much lesser status, namely that of not obtaining the Appellant's written agreement.[31]Finally, Mr Subbarayan referred us on this issue to Robinson v Tescom Corporation [2008] IRLR 408 , in which the employee agreed to work to new terms under protest but then failed to work to those new terms and was dismissed for misconduct for failing so to work. We take the view that Robinson does not add to the principles to be derived from the three authorities to which we have already referred.[32]Having considered those authorities and the circumstances of the present case, we have reached the clear conclusion that, in rejecting the unfair dismissal claim on the basis that there was no dismissal, the Employment Judge erred in law in two separate respects.[33]Firstly, in our judgment, the Respondent could only downgrade the Appellant to band 5 without it being at least open to the Appellant to contend that downgrading was a termination or withdrawal of his employment at band 6, as opposed to a mere variation of his contract of employment, if he agreed in writing If he agreed in writing to being downgraded, subject to Mr Scampion's arguments as to the purpose of the requirement of written agreement, estoppel and waiver, to which we will come, then the situation would have been very similar to that in Roberts ; and we agree with Mr Scampion that the principle in Roberts would apply. The Respondent would not have been simply offering a new or different post, as was the case in Hogg ; the downgrading would not have amounted to a termination by them of the contract of employment but to an agreed variation to that contract of employment and of itself, without more, could not have amounted to a repudiatory breach of that contract of employment which it was open to the Appellant to accept, so as to be able to claim that he had been constructively dismissed.[34]If, on the other hand, the Appellant did not give written agreement to the downgrading, or, to encompass within this proposition Mr Scampion's alternatives, did not disentitle himself from relying on the requirement that he should so agree, then it would be open to the Appellant to contend that the downgrading was more than a mere variation and that he had been dismissed or constructively dismissed by the unilateral imposition of the downgrading. The situation would then be very similar to that in Hogg .[35]Furthermore, if the Appellant did not agree to the downgrading it was open to him to argue (and indeed at one point both Mr Subbarayan and Mr Scampion submitted that this was the appropriate analysis) that the original dismissal on 30 May still stood unaffected by the abortive attempt to find a lesser sanction as a result of the appeal.[36]Lastly, the crucial issue was whether the Tribunal was entitled to find, as it did at paragraph 4.4 of the judgment, that the Appellant had given his written agreement. We put it that way because we agree with Mr Scampion that the Tribunal's conclusion in that paragraph was one of fact which could only be overturned by the Employment Appeal Tribunal if it was a finding of fact which could properly be said to be perverse. In our judgment the finding at paragraph 4.4 cannot be supported and was perverse. We do not see how it could be said that an employee who writes a letter, when ordered to present himself for duties in a demoted job, letting his employers know that he will do so only under protest and that he will be presenting a grievance about the attempted imposition of the downgrading could be said to have given any agreement to the downgrading, and still less written agreement to the downgrading. The facts were not in dispute. The letter of 1 August is in clear terms; it is not suggested that at any time the Appellant withdrew his protest during the course of his working in the band 5 post.[37]In both Hogg and Alcan the employees were not regarded as having accepted the new terms which the employers sought to impose when they indicated that they would obey instructions to work to the new terms under protest and without prejudice to their rights. In this case the Appellant's letter of 1 August 2006 fell, in our judgment, unerringly into the same category. It is true that the letter, not being written by lawyers, does not in terms say, "Without prejudice to my right to claim unfair dismissal", or words to that effect; but it makes it wholly clear that he was going to work and would be working under protest and was not accepting the attempted imposition of the downgrading. It meant, in effect, "I do not accept your demotion of me. I will work to your order under protest and will complain about your demotion under the grievance procedure."[38]Mr Scampion sought to rely on evidence give to the Employment Judge by Ms Muirhead that the Appellant had worked on the new terms and had been given targets by management in the new post; but that evidence does not, in our judgment, and could not properly be regarded as removing or undermining the clear declaration that he was working only under protest. Although we are fully aware of the high hurdle, which confronts an Appellant who seeks to challenge a factual finding of the Tribunal on the basis that it was perverse, that perversity must be overwhelmingly demonstrated (see the decision of the Court of Appeal in Yeboah v Crofton [2002] IRLR 634 ), nonetheless we are unanimously of the view that this was, unusually, precisely such a perverse finding, which perversity has been amply demonstrated.[39]We must next therefore address Mr Scampion's alternative arguments and, first, his argument as to the purpose of the crucial words in paragraph 4.4 of the disciplinary procedures. We have already said that to find such words in a procedure of this kind is unusual. We agree with Mr Scampion this far, that those words can work in such a way as to enable the employee, when the employers have decided to demote as a lesser sanction than dismissal, to reject that lesser sanction. It may be that most employees in that situation will not want to reject what some would regard as a merciful offer, the alternative being the potential end of their employment. However, there may always be employees who believe, as the Appellant asserts to have been the case, that the whole disciplinary process was flawed, misconceived or brought into play for purposes which lay outside the disciplinary process itself. There may be employees who feel it is necessary to reject an offer of downgrading to a lesser post, for instance in circumstances in which they feel that the lesser post has duties which they have not been properly trained to discharge or which they are not competent to discharge, so that if they were to accept it they would be at risk of further disciplinary proceedings for failure properly to discharge the duties of the new post.[40]Mr Scampion's argument that the purpose of the words is simply and no more than to protect the employers by providing them with the necessary paperwork, in our judgment, wholly neglects the situations which may well arise in which an employee wishes to take advantage of the fact that he cannot be downgraded pursuant to his contract unless he agrees in writing to the downgrading. Whether it is at all legitimate to seek to discover the purpose of the insertion of the words into paragraph 4.4, as Mr Scampion says we should (but the Tribunal did not, for it was not necessary for it to do so on the Tribunal's conclusion) we doubt. This appears to us to be seeking to discover the intention of the parties. There may never have been any common intention. The employer's negotiators may have wanted to protect themselves by ensuring that the proper paperwork was in order; the employee's negotiators may have wanted to protect the employees against a downgrading which employees might regard as unjust or risky. But if it is a legitimate exercise to seek to identify the purpose of the relevant words at all, we have no doubt that it is simply not, in practical terms, arguable that the only purpose could be that for which Mr Scampion has contended. Thus we reject his argument that the Respondent could simply waive (we have to say it sounds more to us as if he meant "wave away") the contractual provision that downgrading required the written agreement of the employee.[41]We turn to estoppel; and we will deal with that quickly. Mr Scampion has accepted that his estoppel and waiver points were not argued before the Employment Judge; but we do not propose to deal with those points on the basis that he cannot argue them her. It is debatable whether he can properly do so or not; assuming that he can, there is in our judgment nothing in them. Nothing the Appellant did by way of working under the new terms under protest or by writing the letter in which he sets out that protest can, in our judgment, be said even to begin to amount to a representation that he was, without protest, agreeing to the downgrading. Thus we reject the estoppel argument at a preliminary point; it is unnecessary for us to investigate further the extent to which the principle of promissory estoppel could be applied in the circumstances of the present case.[42]As to waiver, Mr Scampion professionally accepted that the facts which he relied upon, were the same facts as were relied upon in relation to the estoppel argument; and we see, for reasons we have already expressed, no basis upon which it could be said that here the Appellant waived the contractual provision that the downgrading was only accepted if he gave his written agreement. What he did do was to protest the absence of written agreement in his letter of 1 August.[43]Thus we come to the conclusion that, for the reasons we have set out the Employment Judge erred in concluding that there was no dismissal. It will be open to the Appellant at a merits hearing of this matter, if it reaches such a hearing, to argue that he was dismissed on 30 May 2006, which dismissal has not been erased by any subsequent development, secondly, that he was dismissed by the imposition of the downgrading without his written agreement and, thirdly, that the imposition of that downgrading amounted to constructive dismissal.[44]We should add that we do not accept Mr Scampion's contention that the true nature of what happened was not an imposition of downgrading other than pursuant to the contract but was merely a failure on the part of the employers to seek written agreement. They did not obtain written agreement and imposed the downgrading; and in our judgment the imposition of the downgrading, with the consequence of a loss of earnings of between £5,000 and £6,000 per annum gross, could not be described as a mere attempt to vary the contract, as opposed to a serious and fundamental act which could be said to have terminated the previous post or amounted to a constructive dismissal.[45]The second area of law, which, in our judgment, appears from the Employment Judge's reasons, is that identified at the preliminary hearing of this appeal, namely that the Employment Judge failed to address the Appellant's alternative case, which is clearly made out in the second claim form, that the whole disciplinary process was flawed in the manner which we have already described. Neither Roberts , nor Hogg , has any part to play, in our judgment, when we come to consider that way of putting the Appellant's case. The point is very straightforward; he put that case forward in his second claim form.[46]Although the Tribunal referred to constructive dismissal in paragraph 3.7 of the judgment in these terms: "The Claimant therefore believes that the letter of 27 July, the Appeal Hearing's decision, can be regarded as a summary dismissal or, alternatively, a fundamental breach of the claimant's contract entitling him to resign." when the Employment Judge came to express his conclusions on the dismissal issue, this constructive dismissal issue appears not to be referred to, and in any event the wider form of constructive dismissal is not reflected in the judgment at all. It appears to us that the Employment Judge failed to address that alternative way of putting constructive dismissal in his judgment and that it cannot be said that the case which the Appellant sought to make out had no prospects at all of success. The Appellant's difficulty with this way of putting his case may be that he did not resign by reason of the matters of which he makes complaint, as the Respondents say was the case; he apparently did not resign until September 2007. That may be a stumbling block at the merits hearing which he will find difficulty in getting over; and it has to be said that, if an employee works under protest on new terms, there must come a time, it may be thought, when his protest must be deemed to have run into the sand. But those are matters which will have to be considered on the facts at the full hearing of the complaints made by the Appellant. We have no doubt that the Employment Judge erred in concluding that the Appellant's claims that he had been dismissed unfairly could not progress at all because he had not been dismissed. The breach of contract claims[47]Mr Scampion accepts that for present purposes, if the Employment Judge's decision that there was no dismissal cannot stand, then his rejection of the contractual claim must follow the same fate. We therefore say no more about it. Time[48]The first claim form was ineffective; it did not stop time running for any of the claims which the Appellant sought to make. The second claim form was not presented until 6 November 2006, which was more than three months after 30 May 2006 and more than three months after 25 July 2006, when the appeal result was made known to the Appellant, and 1 August 2006, when he started to work under protest on the new terms.[49]Thus, say the Respondent, the Employment Judge was entirely correct to find, as he did at paragraph 4.6, that the effective claim (the second claim) was presented outside the prima facie three-month time limit for an unfair dismissal claim and for a breach of contract claim and that there was no evidence that it would not have been reasonably practicable for him to have issued the claim within the three-month period, during which at least up to the appeal hearing he was being advised by his trade union.[50]Mr Subbarayan submits, firstly, that the second claim form was presented within the period of extension granted by the Tribunal in their letter failing to accept the first claim form, dated 30 August 2006, of which we have already set out the relevant part and, secondly, that the Appellant did not know his full rights. A layman cannot be expected to know of the principles set out in Hogg . The authorities such as Marley (UK) Ltd & Anor v Anderson [1996] IRLR 163 and Miller v Hounslow London Borough Council [2007] All ER 467 establish the principle that it is not reasonably practicable for an employee to present his claim form until he knows or ought to know that he has a right to put his claim forward in the way in which it is eventually put forward. In reliance on cases such as Marks & Spencer Plc v Williams-Ryan [2005] IRLR 562 and Palmer & Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 CA, he submits that "reasonably practicable" means reasonably feasible, that a liberal construction must be applied to the words "reasonably practicable", and that in the circumstances of this case applying all those principles, the Appellant could not have been expected, putting the extension on one side, to have presented his claim before he did.[51]Mr Scampion submits that the extension did not apply to the dismissal claims put forward by the Appellant because the first claim form did not make any dismissal claim, and thus the extension could not be regarded as applying to such claims, to which in any event, it could not formally have applied in the case of the complaint of direct dismissal, as opposed to the complaint of constructive dismissal (see Regulation 15(2) and (3) of the Dispute Resolution Regulations ).[52]As to Mr Subbarayan's second submission, Mr Scampion submits that the Appellant knew perfectly well that he could make a claim for both direct and constructive dismissal. If he contends that his first claim form made such claims, then the evidence was there; he has made those claims and must have done so deliberately, whether he knew about the details of the principles in Hogg or not. However, Mr Scampion, again with professional candour, accepted that, if the first claim form did contain an unfair dismissal claim, then he could not put forward a plausible argument that it was reasonably practicable for the Appellant to put forward his claim before the end of the three-month period, or that the position should not be construed as one in which he was entitled to take advantage of that three-month extension period.[53]In our judgment it is not necessary to look further than Mr Subbarayan's first point. The first claim form we have already described. We have no doubt that, read as a whole, although section 5 was left blank, it did include a notification of an unfair dismissal claim, including a constructive dismissal claim. There is no other way in which, in our judgment, section 3 and sections 9 and 10 of that form can be sensibly understood, making proper allowances for the fact that the form was not completed by a professional lawyer. That being so, we too see no plausible basis on which the Appellant could be denied the ability to rely on the three-month extension, which he was told by the Tribunal that he could have in the Tribunal's letter of 30 August. It may be that the Tribunal mistakenly regarded the first claim form as only a claim for breach of contract; but it may not have taken that view; for the need to progress through the statutory grievance procedure would certainly have applied to a constructive dismissal claim. To be fair to Mr Scampion, he has not sought to rely on that possible view of what the Tribunal thought were the reasons for not accepting the first claim form, albeit some comments were made about that in the judgment of the Employment Judge who set aside the judgment in default. Whatever were the reasons for rejection, in our judgment, once the letter had been received and noted, it could not be right to deprive the Appellant of the three months, which he justifiably believed the Tribunal had given him. Accordingly, we conclude that the Employment Judge erred in the area of time too. The effect of the extension is simply not referred to in his conclusions at all. Those effects were very and directly relevant; and in failing to consider them and to come to the correct conclusion upon them he has erred. Costs[54]The Employment Judge ordered the Appellant to pay a sum of just under £4,000 by way of costs to the Respondent on the basis that his proceeding with his claim was both unreasonable and misconceived. Because of the decisions we have already reached, that order cannot stand and must fall with the order dismissing or rejecting the unfair dismissal and breach of contract claims. However, Mr Subbarayan addressed to us separate arguments that the costs award was wrong in law in any event. We propose to deal with those arguments very briefly.[55]He submits that the Employment Judge failed to take into account that the Respondent had a judgment entered in default against them and had to have it set aside. But the costs sought do not include any costs prior to that setting aside; and therefore Mr Subbarayan's point, in our judgment, has no force. He submits that the Employment Judge must have failed to take into account the evidence about the Appellant's means - he being on sick pay at half his normal rate, his wife being only a care assistant, he having no savings and an interest-only mortgage and being in debt. But it is clear from the Employment Judge's decision that he did take those matters into account; and he had to make a factual determination: it is not for us to interfere with that factual determination.[56]As for the point that the costs order should not have been made because the proceedings were not misconceived, since, rightly or wrongly, it was believed that the Appellant was not entitled to rely on the three-month time limit, that point has been answered by the decision we have made on the time point and does not need to be mentioned separately. Conclusion[57]The appeal against the dismissal of the contract and unfair dismissal claims on the basis that there was no jurisdiction is allowed, as is the appeal against the costs order, which must fall as a result of what we have just said.[58]What is the appropriate next step? Mr Scampion accepted that there were no separate preliminary issues to be decided as to whether any of the Appellant's claims had reasonable prospects of success. The only issue which he suggested should be referred back to the Tribunal for decision as a preliminary issue on a pre-hearing review was as to the true purpose of paragraph 4.4 of the disciplinary procedure. However, Mr Scampion has since indicated that he does not pursue that point, which in the light of what we have already said about its potential purposes, would not have persuaded us in any event. There is, therefore, nothing to go back to a pre-hearing review; and thus we remit these claims to the Employment Tribunal for the Employment Tribunal to hear them and resolve them on their merits.[59]In the circumstances the question as to whether we should remit to the same Employment Judge or a different Employment Judge does not arise; however we feel bound to say that, in the light of this judgment, the Regional Employment Judge may feel that a different Employment Judge at the merits hearing might be preferable, so as to avoid the risk of further complications in the future.