Irish v. Southwark Action for Voluntary Associations [2003] UKEAT 1287_01_1701 (17 January 2003)

JUDGMENT Revised © Copyright 2003 APPEARANCES For the Appellant MR H IRISH (the Appellant in Person) For the Respondent MR STUART BRITTENDEN (of Counsel) Instructed by: Messrs Sinclair Taylor Martin Solicitors 9 Thorpe Close London W10 5XL HIS HONOUR JUDGE PROPHET This is a full hearing in respect of an appeal by Mr Irish of a decision by an Employment Tribunal held at London (South) on 20 August 2001, the Chairman being Mrs F J Silverman, whereby that Tribunal determined that the Applicant did not have sufficient continuous employment to sustain a complaint of an unfair dismissal before the Tribunal. As a consequence his claim was dismissed. That was not a Preliminary Hearing, as we understand it, and therefore it would have been open to the Employment Tribunal to determine whether, if they were wrong in that respect, the Applicant was or was not unfairly dismissed, but they did not choose to follow that course. There was a second matter relating to holiday pay but the appeal relates only to the matter regarding unfair dismissal. On 10 April 2002 there was a Preliminary Hearing before the Employment Appeal Tribunal with Judge Clark presiding, whereby the appeal was allowed to proceed to a full hearing. Several questions were asked by Judge Clark as to whether the Employment Tribunal had made necessary findings. Judge Clark indeed helpfully set out several grounds upon which the appeal was allowed to proceed. At the beginning of the hearing today Mr Irish sought a further adjournment of these proceedings. However, having regard to the history of them, and in particular to the situation as explained to us by Mr Brittenden of Counsel on behalf of the Respondent as to what happened at the hearing before Judge Burke on 24 October 2002 and weighing up the respective interests of each party, as set out by them in what they have said to us today, we have decided that it is appropriate to reject that application and for the full hearing of this case to proceed today. Mr Brittenden concedes that the written contract of employment for Mr Irish, which we have before us says that the employment is permanent and he recognises that it is difficult for him to argue from that document that there was a fixed-term one year contract, as found by the Employment Tribunal. That seems to be supported on our looking at that document by what is said in paragraph 18 about the giving of notice to terminate the employment and it is interesting to see that the reference there talks about additional years of employment after four years, which again makes it dubious that there was any intention at the beginning of the employment that Mr Irish was on a fixed-term one year contract. However, Mr Brittenden has relied on other documents, not we think promoted with any great enthusiasm on his part, that nevertheless Mr Irish was on a fixed-term one year contract. We find without undue difficulty that he was not and that the Employment Tribunal's conclusion in that respect was plainly wrong. The written contract of the employment must be the principal document which applies in Mr Irish's case. Mr Brittenden, however, urges us to find that other letters sent to Mr Irish during the course of his employment constituted a dismissal having taken place on 21 July, which was indeed the date that the Employment Tribunal determined was the effective date of termination and that therefore anything which followed, including the important letter sent to Mr Irish of 2 August, did not affect that situation. This Tribunal is not able to accept that. The dismissal of an employee has to be clear and unequivocal and it cannot properly be inferred from a mistaken view by the Respondent of the Applicant being on a fixed-term contract expressed in letters covering other matters. So, therefore, we move on to Mr Brittenden's further submission that the contents of the letter of 2 August (which it is accepted was received by Mr Irish on either 3 or 4 August) would enable a finding that there was a clear finding by the Employment Tribunal that there was a summary dismissal on its receipt arising from the terms of that letter. Again, we cannot accept that either. It is not correct to say that the mere mention of pay in lieu of notice in that letter means that there was inevitably a summary dismissal. That cannot be right in law. That letter is plainly giving 4 weeks notice of dismissal and therefore Mr Irish's employment must be taken legally to have expired at the end of that four-week period, which we take to be 31 August, even if it was understood that he was not required to work his notice. A P45 (albeit later amended) confirmed that. It is of significance that in his Originating Application Mr Irish clearly stated that his employment ended on 31 August 2000 and it is not clear to us why the Employment Tribunal did not refer to that in the course of their decision. We have concluded that there are several errors of law arising from the way the Employment Tribunal arrived at its conclusions which would, on the face of it, justify this matter being remitted. However, it occurs to us that remission of that nature is really unnecessary because this Tribunal has all the documents which are appropriate to determine the matter itself. That will also avoid further delay in Mr Irish having the merits of his complaint properly considered. We therefore allow this appeal and determine that the employment of Mr Irish terminated on 31 August 2000 and that consequently there is no problem for him in respect of his application of unfair dismissal being out of time. The matter will therefore be sent back to the London (South) Employment Tribunal with a view to determination being made in due course by a freshly-constituted Employment Tribunal as to whether that dismissal was fair or unfair and any remedy which may be consequent thereupon. Nothing in this judgment should be taken as any indication as to the likely outcome on the merits. There is an application by Mr Brittenden for costs which were reserved by Judge Burke on 24 October 2002 and it is our duty today to consider that application. We have heard what Mr Brittenden has to say on that matter and also what Mr Irish has indicated to us. We are looking at Rule 34 of the Employment Appeal Tribunal Rules 1993 and in particular at the reference in 34 (1) to unreasonable delay in conducting the proceedings. This Tribunal is satisfied that there has been unreasonable delay in that respect by Mr Irish which led to the adjournment on the previous occasion. Within the powers vested in us to assess an appropriate sum, and acknowledging the fact that this is not the whole of the costs which were incurred thereby, we have decided to make an Order of Costs against Mr Irish in the sum of £200. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII