Appeal No. EAT/538/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 13 January 1993

	Before

	HIS HONOUR JUDGE J HICKS QC

	MS B DEAN

	MR R H PHIPPS

MR D RICE	APPELLANT

LONDON BOROUGH OF LAMBETH	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

-	APPEARANCES

For the Appellant	NO APPEARANCE BY OR
 	REPRESENTATION ON
 	BEHALF OF THE
 	APPELLANT

For the Respondents	MR B WILTSHIRE
	(Of Counsel)
Legal Services
London Borough of Lambeth
Lambeth Town Hall
Brixton Hill
London SW2 1RW

	JUDGE HICKS QC:  Mr Rice appeals to this Tribunal from the decision of the Industrial Tribunal on 5 July 1991 deciding that his application on the ground of unfair dismissal against the Respondents the London Borough of Lambeth could not be entertained because it had been lodged out of time.  The relevant dates, so far as the way the Industrial Tribunal dealt with it is concerned, is that Mr Rice, having formerly been in the employ of the Borough as a safety officer, was in December 1988 sentenced to 2 years' imprisonment for a social security fraud and was not after some date in that month paid, but nothing decisive apart from that was done by the Borough about the relationship between him and them in terms of employment.

	On 6 June 1990, after his release and after he had been interviewed, a letter was written to him stating that they did not intend to offer him employment.  The assumption of that letter and of the Borough's subsequent stance was that he was not in their employment and therefore the question was whether he should be re-engaged, but as I have said at no stage did they ever take any formal step to terminate the employment until we come to that letter of 6 June.

	On 3 July Mr Rice's solicitors - and we consider that the Industrial Tribunal were entirely entitled to take the view that they were solicitors with authority to write this letter on his behalf - wrote as follows:

"We have taken our client's instructions upon your letter of 6 June.  Until this letter our client does not accept that it was made plain to him that his contract had been terminated and this does not appear still to have been done in a formal manner.  However we now accept that letter as being the formal termination of the contract."

	The Tribunal dealt with the matter on the basis that the letter of 6 June was a formal termination of the contract.  The application was presented on 15 February 1991 and on that basis was plainly out of time.

	The Appellant does not appear today to argue the appeal either personally or by representative.

	We think that there might have been some argument to the effect that the letter of 6 June is not on its face a termination of employment - it assumes that employment has already been terminated - but we do not consider that there is any justification for setting aside the decision of the Industrial Tribunal, because it seems to us that on any view the result was right, although the reasoning that the letter of 6 June was a termination may be open to argument.  The way that it seems to us the matter is resolved is this, that if it was not a termination then it was an undoubtedly a repudiatory letter with the intention on the part of the Borough not to be bound by or honour any contract of employment that may still have existed at that date, and the letter of 3 July plainly accepts that repudiation (if that is what it was) so that whichever way the matter falls out - whether there had been some valid earlier termination as the Council assumed - or the letter of 6 June was itself a termination as the Industrial Tribunal seems to have decided, or neither of those views was correct but nevertheless that letter was a repudiation - then on any view the employment had terminated at the latest on 3 July 1990, and therefore the application was on any possible view of the facts out of time and in those circumstances the appeal must be dismissed.

	The Borough does not pursue the application for costs of which it had given notice on 19 October 1992 and therefore there will be no order for costs.