PARKER RHODES HICKMOTTS SOLICITORS v MR C HARVEY [2012] UKEAT 0455_11_0902

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2012] UKEAT 0455_11_0902Case No Appeal No. UKEAT/0455/11
Between
PARKER RHODES HICKMOTTS SOLICITORSAPPELLANTMR C HARVEYRESPONDENT
Before
His Honour Judge Peter ClarkDate 9 February 2012
[1]APPEARANCES For the Appellant MS NICOLA TWINE (of Counsel) Instructed by: Beachcroft LLP 7 Park Square East Leeds LS1 2LW For the Respondent MS ELISABETH COOPER (of Counsel) Instructed by: Messrs Atteys Solicitors 82 Cleveland Street Doncaster DN1 3DR SUMMARY UNFAIR DISMISSAL – Exclusions including worker/jurisdiction One year's continuous employment completed on employer's first notice of dismissal but not on second notice. Second notice prevails; see Stapp ; M-Choice . Employer's appeal allowed; Employment Tribunal had no jurisdiction to consider Claimant's unfair dismissal claim. HIS HONOUR JUDGE PETER CLARK Introduction This is an appeal by Parker Rhodes Hickmotts, Respondents before the Sheffield Employment Tribunal, against the Judgment of Employment Judge Williams, sitting alone at a PHR held on 9 March and 4 May 2011, ruling that the Tribunal had jurisdiction to hear the claim of unfair dismissal brought by the Claimant, their former employee Mr Harvey, on the basis that he had more than one year's continuous service prior to his dismissal. The Respondent says that he did not. That Judgment is dated 27 May; Reasons for the Judgment were promulgated on 23 June. Background[2]The Respondent is a firm of solicitors. The Claimant was employed as a solicitor on 1 September 2009. The question is, when did that employment end (the effective date of termination) (EDT).[3]On the afternoon of 28 July 2010, mis-dated as 28 July 2009 at paragraph 3.3 of the Reasons, Mrs Fiona Shinner, a Managing Partner of the Respondent responsible for employment matters, met with the Claimant and handed him a letter bearing that date. She told him that the firm was regrettably having to let him go due to a lack of work that would justify his retention. He undertook commercial property and residential conveyancing and leasehold work. She also told him that the decision was being made then so as to avoid the risk of his acquiring employment protection rights that would entitle him to challenge his dismissal, a point that he accepted in evidence to the Tribunal (Reasons, paragraph 5 (2)). The Claimant opened Mrs Shinner's letter ("the first letter") and read it. So far as is material, it said this:
"Dear Chris It is with regret that we have to advise you that your present role in the firm will be redundant from the 31 st August 2010. […] As you have been employed by us for less than a year, you are not entitled to any redundancy payment. We will, however, make an ex gratia payment of two weeks pay. We do not require you to work all your notice and, bearing in mind you have booked a holiday, we would suggest that you come into work until the 9 th August and we will pay you holiday and notice in lieu up to the 30 th ."
[4]Pausing there, the Claimant had a contractual notice period entitlement of four weeks; in excess of the statutory minimum period of one week's notice provided for in section 86 of the Employment Rights Act 1996 (ERA). It is common ground that for the Claimant to have clocked up not less than one year's continuous service for the purpose of section 108(1) ERA his employment would have to end no earlier than 31 August 2010. Thus, to complete the statutory chain, the question for determination at the PHR was, what was the date on which the notice given by the Respondent expired (ERA, section 97(1)(a))? No extension under section 97(2) arises on the facts of this case, the contractual notice period exceeding the statutory minimum under section 86(1)(a).[5]Having delivered the bad news to the Claimant, Mrs Shinner then took fright. Having made it clear to the Claimant, who was not an employment lawyer, both verbally and in the first letter that it was the Respondent's intention to terminate his employment before he acquired unfair dismissal protection, she was concerned that the reference to 31 August 2010 in that letter may have the effect of continuing his employment past the one-year mark. So the next day she sent him an amended letter ("the second letter"), which he did not see until 2 August, so the Judge found. The second letter was, like the first, dated 28 July, and was in identical terms save that in the first paragraph the date 28 August 2010 was substituted for 31 August so that it now read, "your present role in the firm will be redundant from the 28 th August 2010". The Tribunal Decision[6]The Judge found that the EDT in this case was 31 August 2010, thus the Claimant had sufficient qualifying service to bring his complaint of unfair dismissal under section 94 ERA read with section 108(1). It is also common ground that none of the immediate rights claims identified in section 108(3) apply.[7]In reaching that conclusion he referred to a number of authorities cited to him and listed at his paragraph 4(2); I need not repeat them all here. In particular, he expressly considered the cases of Leech v Preston Borough Council [1985] IRLR 337 (see paragraph 5(7)) and Chapman v Letheby and Christopher Ltd [1981] IRLR 440 (see paragraph 5(8)). I note that he did not expressly discuss the Court of Appeal's Judgment in Stapp v The Shaftesbury Society [1982] IRLR 326, to which he was also referred. I should add that I have been referred to the recent decision of Keith J in the EAT, decided after this PHR was heard, in M-Choice UK Ltd v Aalders UKEAT/0227/11/DA, 10 August 2011, where Stapp was considered and applied.

The Judge's reasoning was as follows:

"5(4). The Respondents gave […] clear notice by [the first] letter that he was to finish on 31 August, and […] he had been told he would be paid to the end of that month."
[9]Pausing there, in fact the first letter stated that he would be paid up to 30 August, and from 31 August he would be redundant, but I am told that the Respondent did not contend for 30 August as the EDT below and thus I am not asked to consider that real possibility on appeal.[10]The Claimant did not accept any change to the original EDT of 31 August (paragraph 5(5)); the Respondent simply got this wrong (paragraph 5(6)); an error was made. Having considered the cases of Leech and Chapman to which I have referred, the Judge concluded (paragraph 5(9)) that the Tribunal had jurisdiction to entertain the claim. The appeal[11]Ms Twine advances four grounds of appeal; it is the fourth ground (the Stapp point) that seems to me to be determinative of this appeal. In Stapp the respondent employer gave one month's notice of termination of the claimant's employment on 24 January 1980. That would give an EDT of 23 February, which would mean that the claimant had then completed the necessary qualifying period of continuous service to bring his claim of unfair dismissal. During that notice period the respondent gave a second letter of dismissal with immediate effect on 7 February. If that was the EDT, he had not completed the qualifying period. The Court of Appeal held that the second letter effectively terminated his employment on 7 February; he was not eligible to bring his claim. The summary dismissal, even if wrongful, was effective to terminate the employment there and then (see per Stephenson LJ (paragraphs 32-33) and Sir David Cairns (paragraph 39)).[12]Stapp was applied in M-Choice , where notice of dismissal was given to expire on 1 February 2011. That would have given the Claimant sufficient qualifying service for her claim of ordinary unfair dismissal. On 21 January the employer summarily dismissed her before she reached the qualifying period of service. The Employment Judge found that the EDT was 1 February. Keith J reversed that decision on appeal, holding that the EDT was the date of summary dismissal, 21 January (see paragraphs 22 and 25). The Tribunal had no jurisdiction to entertain the claim.[13]Ms Twine relies on those authorities for the proposition that here the second letter, giving an EDT of 28 August, superseded the first letter, giving an EDT of 31 August. As in M-Choice , the Employment Judge here does not appear to have considered the effect of the Court of Appeal's Judgment in Stapp on the second letter. Had he done so, he was bound to conclude, she submits, that the second notice period superseded the first.[14]Ms Cooper, in a cogent and sustained submission, argues that both Stapp and M-Choice are distinguishable, first because they were cases of summary dismissal (here, the purported second letter was on notice) and secondly because in those cases the employer changed his mind; that did not happen in the present case. As to the first point, I can see no distinction between a summary dismissal and dismissal on notice for present purposes. Both are dismissals for the purposes of Part X ERA (see section 95(1)(a)).[15]Secondly, it is clear from the Judgments in Stapp (paragraphs 30 and 39) and M-Choice (paragraph 25) that the reason for the second dismissal, whether it is wrongful or not, is immaterial to the EDT question under section 97(1)(a) ERA.[16]Ms Cooper also advances a further argument, formulated in this way. The second letter was not effective because the first letter validly gave notice of termination effective on 31 August, and it could not be withdrawn without the consent of the Claimant, such consent not having been given. In support of that proposition she relies on the National Industrial Relations Court decision in Harris & Russell v Slingsby [1973] IRLR 221 and the earlier decision of Diplock J (as he then was) in Riordan v The War Office [1959] 3 All ER 552, which was not cited to the NIRC in Slingsby but is consistent with the approach taken in that later case. Conclusion[17]Riordan and Slingsby both raise the question as to whether notice once given can be unilaterally withdrawn. The answer is no, as Keith J observed, by reference to Stapp in M-Choice at paragraph 22. However, in the present case the Respondent did not seek to withdraw the original notice of dismissal with or without the Claimant's consent so as to continue the employment; instead it wished to proceed with the dismissal, bringing forward the EDT. That is quite different and is permissible in line with Stapp and M-Choice , the second letter constituting a new notice as opposed to a variation of the first notice (see Secretary of State for Employment v Staffordshire County Council [1989] IRLR 117 CA). Indeed, it seems to me that the learned editors of Harvey on Industrial Relations are correct in observing (volume 1, D1/710) that paradoxically it may be more difficult for an employer to bring forward the EDT consensually rather than unilaterally by serving a fresh notice. I have in mind the approach of Sedley LJ in Fitzgerald v University of Kent [2004] IRLR 300 , where the Court of Appeal held that it was not open to the parties by agreement to retrospectively backdate the EDT. In short, I accept Ms Twine's submission that the Employment Judge fell into error in failing to find, applying Stapp , that the second letter was effective in shortening the notice period such that, as the Respondent had always made clear to the Claimant, he did not complete the necessary qualifying service to bring his claim. The EDT, if not 30 August, was 28 August, as the case has been put to me. Disposal[18]It follows that I shall allow this appeal, reverse the decision of the Employment Judge, and declare that the Employment Tribunal has no jurisdiction to entertain the claim of unfair dismissal on the basis that the Claimant did not complete one year's continuous service. Accordingly, the claim is dismissed.