The Governing Body Of Wishmorecross School v Balado (Jurisdictional Points : Claim in time and effective date of termination) [2011] UKEAT 0199_11_1207

EAT
The Governing Body Of Wishmorecross School v Balado (Jurisdictional Points : Claim in time and effective date of termination)
[2011] UKEAT 0199_11_1207 · 2011-07-12
[1]The Claimant was employed as a teacher at Wishmorecross School, of which the Appellants are the Governors: I will refer to them in this judgment simply as “the School”. Following an incident with a pupil, of which the details are immaterial for present purposes, the Claimant was charged under the School’s disciplinary procedure. There was a hearing on 15 July 2010. On 21 July she was sent a letter notifying her that the charges had been upheld, and giving brief reasons. The letter continued:
“The Committee unanimously concluded that you had seriously breached the established disciplinary rules of the school and that your actions constitute gross misconduct for which you will be summarily dismissed. You have a right of appeal against this decision to a separate panel of Governors who have not previously been involved in the case. Should you wish to appeal you should notify the Clerk to the Governors […] formally in writing within ten working days from receipt of this letter, that is by 14 September 2010, setting out clearly the grounds for your appeal, and marking the envelope ‘Urgent’. In the meantime you will continue to be suspended on full pay. Please note that the decision to dismiss you will not be put into effect unless (a) you decide not to appeal against the decision or (b) any appeal is unsuccessful.”
The reference to 14 September as being ten working days from the receipt of a letter dated 21 July is at first sight odd, but no doubt it reflects the intervention of the school holidays.[2]The Claimant appealed against the decision. Her appeal letter is undated, though it is endorsed by the Clerk to the Governors as having been received on 16 September 2010. It was accepted as a valid appeal, and there was a hearing on 19 October. On 21 October the Chairman of the appeal panel wrote to her dismissing the appeal. The letter concluded:
“I am therefore writing to confirm your summary dismissal on grounds of gross misconduct with your last date of employment and payment being regarded as Tuesday 26 October 2010.”
[3]The School’s understanding of the position was that throughout the process up to 26 October 2010 the Claimant remained employed. She was paid up to that date, and her P45 showed it as the last date of her employment. She, however, apparently on legal advice, regarded it differently. She thought that she was dismissed on the date of the first hearing (that is, 15 July), and that accordingly she had to bring any proceedings for unfair dismissal by no later than 14 October. The claim form in the present proceedings was in fact presented on 13 October.[4]The School took the point that the claim was premature. Section 111 (2) of the Employment Rights Act 1996 provides as follows:
“Subject to the following provisions of this section, an Employment 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, or (b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”
It has always been understood that the effect of that provision is that a Tribunal has no jurisdiction to entertain a claim presented prior to the effective date of termination, subject to the exception provided for in sub-section (3) of section 111, which reads as follows:
“Where a dismissal is with notice, an Employment Tribunal shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination.”
[5]The issue of whether the Claimant’s claim was premature came before Employment Judge Zuke, sitting at London South, on 9 February this year. The Claimant appeared in person; the School was represented by Mrs Bontoft of the Surrey County Council Legal Department. The Judge held that the Tribunal did have jurisdiction to entertain the claim. At the School’s request he subsequently provided written Reasons, which were sent to the parties on 22 March. His essential reasoning appears at paragraph 16 as follows:
“In my view the letter of 21 July amounts to a termination of the contract by the Respondent, with notice. The Claimant was told that there was a unanimous decision that she should be dismissed. She was given notice that she would be summarily dismissed. Having regard to section 111(3) she was entitled to present her claim to the Tribunal before the effective date of termination on 26 October. I conclude that the claim was not presented prematurely, and that the Tribunal has jurisdiction to consider her complaint of unfair dismissal.”
[6]The School has appealed. It has been represented before me again by Mrs Bontoft, to whom I am grateful for her clear and succinct skeleton argument. The Claimant did not enter a Respondent’s Answer and has been debarred from taking part in the appeal.[7]I should make it clear by way of preliminary that the Claimant’s initial understanding that she was dismissed at the first disciplinary hearing – or, perhaps slightly more realistically, on receipt of the letter of 21 July 2010 - was wrong. I suspect that it was based on the fact that the procedure employed in many, perhaps most, formal disciplinary procedures is that the lodging of an appeal does not prevent the original dismissal from taking effect, so that if the appeal is successful what happens is that the dismissal is retrospectively rescinded (see J Sainsbury Ltd v Savage [1981] ICR 1): the lesson has been painfully learnt that in such a case it is necessary to present a complaint to the employment tribunal within three months of the original dismissal decision, notwithstanding the pending appeal. But that will only be so if that is how the particular appeal provisions work: where, as here, the lodging of an appeal is expressed to be effective to keep the employment alive, the position is different (see generally the discussion in Harvey on Industrial Relations and Employment Law in section DI at paragraphs 748‑749). I suspect that the Claimant, or those advising her, failed to appreciate that distinction.[8]The question of jurisdiction stands or falls by whether the Judge was right to hold that this was a case where notice of dismissal had been given so as to fall within the terms of section 111 (3). Turning to the actual decision of the Judge, it has to be accepted that his reasoning is so short that it is, with respect, difficult to understand the detailed reasons that led him to his conclusion. However, all the relevant materials are before this Tribunal, and the question is essentially one of legal analysis.[9]The starting-point is to analyse precisely what the legal effect of the letter of 21 July 2010 is. The material passage begins by saying “you will be summarily dismissed”. In the ordinary usage of employment lawyers, “summary dismissal” means dismissal with no notice at all, so that the dismissal takes effect immediately on notification; but it is not outlandish for it to be used, even if a purist might quibble, to mean “with short notice”. In the present case it is clear when the letter of 21 July is read as a whole that it is not intended to effect an immediate dismissal. Quite apart from the use of the future tense, it is clear from the following two paragraphs that the employment will not terminate at least until the deadline for appealing has passed, nor thereafter if the Claimant lodges an appeal. In my judgment the legal effect of the letter is as follows:(1) The employment will terminate on 14 September, or within ten days of receipt of the letter, if later, without any further step on the part of the School if no appeal has been lodged by that date. But if an appeal is lodged:(2) If it fails, the employment will terminate at the point that the decision to that effect is notified.(3) If the appeal succeeds, the notice will lapse. (I should say in relation to point (2) that in the event the Claimant was given a further few days’ grace - the letter notifying the result of the appeal was dated 21 October, but she remained in employment until 26 October - but that fact cannot alter the effect of the letter of 21 July as drafted.) One way of putting that effect of the letter is that the dismissal is doubly conditional - that is, it is conditional first on whether the Claimant chose to appeal and secondly on the outcome of the appeal.[10]The question then is whether the sending of a letter with that effect constitutes a dismissal with notice for the purpose of section 111 (3). If one puts aside the element of conditionality, there is no problem: the effect of the letter is to terminate the employment as at an identified future date, and if the Claimant had not appealed no-one would have cavilled at the description of her having been dismissed on notice. The real question is whether the fact that the dismissal is indeed conditional on her not appealing alters that analysis. After some reflection, I have come to the conclusion that it does not. The statutory phrase “dismissal with notice” (with its cognates) is not in fact a defined term; but if one asked an employee who had received a letter such as this “have you been given notice of dismissal ?” it seems to me that the only natural answer would be yes, even if the dismissal date could be or had been deferred by the lodging of an appeal, and even though the dismissal might, if the appeal were successful, be rescinded altogether.[11]Such a construction seems to me consonant with the purpose of section 111 (3), which is to enable employees to commence claims of unfair dismissal once an unequivocal decision to dismiss has been made and communicated, without them having to wait for the expiry of the notice period. I can see a theoretical argument that it would be contrary to good employment practice for employees to be permitted to commence proceedings in the employment tribunal before their internal appeal rights have been exhausted. But the fact is that, as I have noted at para. 7 above, in the very common type of case where contractually the effect of the appeal is not to suspend the dismissal employees have in any event to issue proceedings before the appeal is heard. That being so, it is hard to see that there is any policy reason for treating a dismissal on notice which is subject to a right of appeal as not amounting to a dismissal on notice at all.[12]Mrs Bontoft understandably pressed me with the line of authorities starting with Morton Sundour Fabrics Ltd v Shaw [1967] ITR 84 which emphasise that notice of dismissal will be effective only if it is unequivocal and if the date on which the employment is to terminate is ascertainable. However, none of those cases was concerned with a dismissal which takes effect on a certain date subject only to a right of appeal. It would not in my view be right to describe such a dismissal as equivocal only because of the existence of the right of appeal. I have never heard it argued that an employee who is given three months’ notice of dismissal has not been effectively dismissed because of the possibility that during that period, or indeed after its expiry, the dismissal might be rescinded as a result of a successful appeal.[13]Mrs Bontoft also referred me to the decision of this Tribunal, HH Judge Burke QC presiding, in Rai v Somerfield Stores (EAT/0557/02). In that case, the employers wrote to an employee who had been absent without authority for some time, setting a date for his return and saying:
“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.”

Judge Burke said at paragraph 30 of his judgment:

“In our judgement, 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 a 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.”
I do not quarrel with that as a general proposition, but it was aimed at circumstances of the kind that were before the Tribunal on that occasion. It was plainly not intended to, and in my judgment does not, cover a case, such as we have here, of a dismissal on notice subject to a right of appeal.[14]The appeal is accordingly dismissed.[15]I should add one footnote. The sharp-eyed reader of this judgment will have spotted that the notice of the internal appeal was lodged only on 16 September 2010, whereas the deadline specified in the letter of 21 July was 14 September. Prima facie , on my analysis at para. 9 above, the employment would have come to an end on 14 September. However, Mrs Bontoft helpfully confirmed what I had inferred in any event, namely that there had been some dispute about when the date for the expiry of the time for appealing in fact expired, and that the School had been willing to give the employee, as she put it, the benefit of the doubt. In those circumstances no point on this was taken before the Tribunal or could be taken on this appeal.