Appeal No. EAT/352/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 3rd November 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MRS M E SUNDERLAND JP

	MR G H WRIGHT MBE

VALEO DISTRIBUTION (UK) LTD	APPELLANTS

MR W BARBER	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR JOHN SMITH
(Solicitor)
Messrs Higgs & Sons
31 Wolverhampton Street
Dudley
West Midlands
DY1 1EY

For the Respondent	MRS D J BARBER
(Representative)

	MR JUSTICE WOOD (PRESIDENT):  On the 20th July 1991, Mr Wayne Barber received a letter dated the 19th July, from his employers Valeo Distribution (UK) Ltd, it read as follows:
"Dear Mr Barber

Please accept this letter as notice of termination of your employment, effective from today's date.

You received a written warning on 18th March 1991 concerning your standard of timekeeping and general level of performance.  There appears to have been no improvement, culminating in the loss of a supplier's delivery note.  For these reasons it has been decided to terminate your employment with Valeo Distribution (UK) Ltd with immediate effect.

Your tax documentation and any outstanding monies due will be forwarded to you.

Yours sincerely

KEVIN MADDEN
Operations Manager"

	Mr Barber took the view that he had been unfairly dismissed and therefore issued an Originating Application before an Industrial Tribunal, it was dated the 29th August 1991.  His position with the Company was a warehouse assistant.

	By their Notice of Appearance the Company pleaded that his employment with them had started on the 7th August 1989, that because of the terms of the letter and its receipt on the 20th July 1991 that was the effective date of termination, therefore, Mr Barber had not worked for the qualifying period of two years so as to give the Tribunal jurisdiction.  The issue therefore, before the Industrial Tribunal was, what was the effective date of termination?  Was it on or after the 7th August 1991?  If so, they had jurisdiction, if not, they did not, because of the provisions of the Employment Protection (Consolidation) Act 1978.

	The matter was heard at Birmingham on the 17th March 1992.  The Tribunal decided that it had jurisdiction and that the effective date of termination was after that two year period.  The Company now appeal.

	It seems that the Tribunal found that because there was no mention in the letter of gross misconduct therefore the letter was ineffective and that the Applicant was entitled to one month's notice which then brought his contract to an end after the 7th August 1991.

	The law on this subject is clear, it has the authority of the Court of Appeal and is binding on us.  There are two authorities to which we have been referred, which are merely two amongst many others, first of all Stapp v. The Shaftesbury Society [1982] IRLR p.326.  The facts of that case are not material, save to say that there was a letter which gave immediate dismissal.  The two passages to which we have been referred, first of all in the judgment of Sir David Cairns in paragraphs 37 and 38 where he said this:
"In my judgment the `effective date of termination'. . . . means the actual date of termination of the employment, whether the employee was wrongfully dismissed or rightfully dismissed.

It cannot be supposed that when an Industrial Tribunal is considering whether it has jurisdiction to entertain an application for a finding of unfair dismissal, it has to embark on an inquiry as to whether or not the dismissal was wrongful."

	Then earlier there is the passage from the leading judgment of Lord Justice Stephenson, when he says this:
"As I understand it, it is conceded by Mr Widdup that a summary dismissal which was not wrongful or unfair - a summary dismissal for good cause or for reasons justifiable under the Act - would have the effect of preventing the appellant from qualifying to present a case to the Industrial Tribunal, and in my judgment Mr Carr is quite right in saying that that must be so whether the summary dismissal is for good cause or for bad, for reasons which are justifiable or for reasons which are not."

	The second authority is that of Cort (Robert) & Son Ltd v. Charman [1981] ICR 816.  That was a decision of this Appeal Tribunal presided over at that time by the learned President, now Lord Browne-Wilkinson.  The issue of whether or not a contract can be brought to an end immediately and unilaterally, was dealt with by the learned President at page 818 at H, where he says:
"Moreover, the attention of the industrial tribunal does not seem to have been drawn to authorities which indicate that for the purposes of section 55(4) and its statutory predecessors it does not matter whether or not the notice of dismissal (if there is a notice) or the dismissal without notice constituted a breach of contract.  These authorities indicate that section 55(4) operates irrespective of whether, as a matter of contract, the employer ought to have given some notice or a longer notice."

That issue is referred to later at "D" at page 819 where the learned Judge says:
"However, in our view it is a clear decision binding on us that where there is an immediate dismissal with salary in lieu of notice, the effective date of termination is the date of the dismissal, not the expiry of the period in respect of which the salary in lieu is paid for:"

and there he is referring to Dedman [1974] ICR 53.

	So it comes to this, looking at that letter of the 19th July, does it effectively, rightly or wrongly in contractual law, bring to an end Mr Barber's employment.  We are unable to reach any other conclusion but that it is absolutely clear that it did.  Mr Barber may have rights for breach of contract, but for the purposes of the 1978 Act the EDT prima facie must be the date upon which that letter was received.  That date is the 20th July 1991.  However, there are provisions in the Act for extending the EDT by the period of the statutory notice to which an employee is entitled.  The relevant provision for that purpose is Section 55(5) of the 1978 Act, that in its relevant parts reads:
"Where the contract of employment is terminated by the employer and the notice required by section 49 to be given by an employer would, if duly given on the material date, expire on a date later than the effective date of termination (as defined earlier) then, for certain purposes the later date shall be treated as the effective date of termination in relation to the dismissal."

	What period therefore, can be added to the 20th July 1991 under that provision.  For this purpose it is necessary to look at Section 49.  Section 49(1)(a) reads:
"The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for [one month] or more -

(a)shall be not less than one week's notice if his period of continuous employment is less than two years;"

It was so in Mr Barber's case, therefore, we can add a week.  If we add a week to the 20th July it makes the 27th July, and that is still short of the vital date of the 7th August 1991.  Therefore, if one applies that law and the Statute, the Tribunal here had no jurisdiction.  How then was it that they decided that they had?

	It is not entirely easy to understand but it seems to us that the Tribunal decided that because there was no allegation of gross misconduct in the letter therefore the letter was ineffective and Mr Barber was entitled to a month's notice.  It is clear from those decisions which we have already cited, and indeed many others, that this letter was a repudiation, it was a repudiatory breach.  It clearly terminated the contract unless the common law provisions applied and the contract was not terminated until that repudiation was accepted.  There is however, a long line of authorities which indicates that so far as the 1978 Act is concerned and employment law is concerned it is possible to bring a contract of employment, for those statutory purposes, to an end by a letter such as this.

	It follows, therefore, that in our judgment this Tribunal erred in taking that view of the letter.  The letter clearly, brought the contract to an end under the provisions of the Act.  Then the Tribunal added two week's statutory minimum period of notice, but in our judgment, reading Section 49 as we have, Mr Barber was only entitled to one week. 

	In the circumstances therefore, the decision erred in law and we are quite satisfied here that the Tribunal had no jurisdiction to hear Mr Barber's case.  This appeal must therefore be allowed and a declaration made that the Tribunal has no jurisdiction to hear this Originating Application.