Appeal No. EAT/0705/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 October 2001

Before
HER HONOUR JUDGE WAKEFIELD
MISS D WHITTINGHAM
MR G H WRIGHT MBE

MRS JOYCE NUTLEY	APPELLANT

THAMES VALLEY UNIVERSITY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R MORRIS
(Of Counsel)
And THE APPELLANT
In Person	
For the Respondent	MR ANDREW GLENNE
(Of Counsel)
Instructed by
Messrs Eversheds
Senator House
85 Queen Victoria Street
London
EC4V 4JL

JUDGE WAKEFIELD

1.	This is an appeal by Mrs Joyce Nutley against the decision dated 26 April 2000 of an Employment Tribunal sitting at Reading by which her complaints of unfair dismissal, wrongful dismissal and harassment were all dismissed.

2.	Before us today the appeal has proceeded on two bases.  Firstly, that the Employment Tribunal was wrong to find that the Appellant was not unfairly dismissed in that she had been unfairly selected for redundancy but terminated her employment by mutual agreement.  And secondly, that the Employment Tribunal was wrong to construe the contract of employment as showing that the Appellant was entitled only to three months’ notice on termination rather than the twelve months for which she had contended.

3.	It is convenient to take the second point first.  The bundle before us today contains the various contracts under which during a 24 year period of continuous employment the Appellant had worked for the Respondent or its predecessors.  These documents were also before the Employment Tribunal.

4.	We are satisfied that the relevant contractual documents and clauses in those documents as to period of notice to which the Appellant was entitled on termination of her employment are as follows: in our bundle pages 17-20 the document entitled “CONTRACT FOR TRAINING CONSULTANTS” dated 4 April 1990, clause 11 which says:

“A period of three months’ written notice of termination of this agreement is required from either party except in cases of dismissal on the grounds of misconduct, in which case the provisions of the College Disciplinary Procedure shall apply.

One month’s notice will be given of any variation to this contract.

Should it be necessary to consider redundancy, the Board of Governors will give you as much notice as is practicable and in any event, no less than three months.”

We then move on to the document which is headed in part “NATIONAL AGREEMENT 1990”, pages 21-26 and 35-42 of our bundle.  On the front page of that document it says:

“This agreement replaces all previous agreements.”

and it then has as clause 4 on page 26 of our bundle:

“Redundancy

If in accordance with the existing contract of employment as a result of the transfer to the institution on 1 April 1989, an individual is entitled to one year’s notice in the eventuality of redundancy under the Terms of Appendix II of the “Conditions of Service for Lecturers in Further Education” then that entitlement shall remain in force notwithstanding the fact that the individual has transferred to the agreed contract of employment under the provision of Phase Two of this Agreement.”

Phase Two contains the following as clause 21.  This is our page 42:

“Termination of Employment

Your appointment shall be terminable, except in the case of probation or dismissal for gross misconduct by your giving the institution two months’ notice in writing or by the institution giving you three months’ notice in writing.”

5.	A letter, apparently of standard form and sent to all the relevant employees, was sent to the Appellant and dated 10 June 1992.  It contains some explanation of the introduction of the 1990 National Agreement but it is not, we are quite satisfied, part of the contract of employment itself.  The relevant part of the letter is the penultimate paragraph.  It is our pages 27-28 and it says as follows:

“Finally, it is worth reminding staff that the Polytechnic has a policy of “no compulsory redundancy”.  Notwithstanding this policy, the national agreement states that all staff transferring to the new national contract of employment will retain their entitlement to one year’s notice in the eventuality of redundancy.”

6.	The only other documents which are ancillary to but again, we are satisfied, not part of the contract are a management statement dated 11 March 1999 which is on our page 44 and a letter dated 21 April 1999, our page 43, in similar terms.  The management statement says:

“The University recognises that staff who:
•	are currently on teaching contracts at TVU, and
•	were employed prior to transferring to the ‘new national contract’ in 1991, and would have been in receipt of a letter from John Thompson, Head of Personnel Services of 10 June 1992 and
•	have not subsequently, explicitly given up this right,
•	have an individual entitlement to 12 months notice in the event of dismissal for redundancy.”

7.	The Employment Tribunal referred to parts but not all of this documentation in its decision and concluded as follows in its paragraph 13, our page 7:

“The question of the appropriate notice period remained and this must be determined on the basis of interpretation of the contractual terms of the agreement and the Tribunal is satisfied that the applicant was entitled to only three months’ notice; whilst in her original contract of employment she was entitled to twelve months’ notice under the subsequent contract which took effect from 1 January 1990 Clause 11 stated that she would be entitled to not less than three months’ notice in the event of redundancy and it is quite clear that this contract existed without variation throughout the applicant’s subsequent period of employment until her employment ceased on 31 August 1999.”

8.	It is quite clear to us and indeed is accepted by both parties to this appeal that on construction of the documentation that conclusion of the Employment Tribunal was incorrect in terms of the contract which was applicable at the time of termination.  Both parties have invited us to construe the documents and make our own findings as to correct period of notice.

9.	Having done so we are satisfied that the agreement in force at the time of termination of the employment relationship was the 1990 National Agreement and that under Phase Two, clause 21 of that agreement the period of notice to which the Appellant was entitled was three months.  The 10 June 1992 letter and the February 1999 management statement and confirmatory letter could only have referred to those employees who, prior to the 1990 National Agreement, already had a twelve months’ entitlement and were to be permitted to retain it.
 
10.	The Appellant did not have that twelve months’ entitlement and therefore is bound by clause 21.  The Employment Tribunal were therefore correct in their finding as to the three months notice period but were wrong in their reasoning and construction of the documents.

11.	It has been further argued before us today that by reason of the 10 June 1992 letter and the management statement and letter in similar terms the Respondents are estopped from asserting that the Appellant has any other entitlement than twelve months notice on termination.  Whilst it is certainly the case that those documents are not as clearly expressed as they might have been and that read by a layman even in conjunction with the contract of employment they could give the impression that the Appellant was included amongst those who had a twelve months entitlement, we are satisfied from the sequence of correspondence between the Appellant and the Respondent which led to the termination of her employment that she could have placed no reliance on such belief in making her decision to pursue voluntary severance.  In particular the letters at pages 81 and 83 of our bundle are pertinent and I will just refer to the crucial extracts from those letters.  The first is one from the Appellant to the Head of Personnel of the Respondent dated 29 June 1999 headed ‘Voluntary Severance’ and it says:

“With reference to your correspondence dated 12.5.99 I apply for Voluntary Severance on the basis of your voluntary Severance Package and contractual Notice Entitlement in the eventuality of Redundancy of 12 months.

My interpretation with supporting documentation of Notice Entitlement in the eventuality of Redundancy being 12 months and therefore I dispute the contents of your letter dated 25.6.99.”

I should just refer back to that letter of 25 June which refers to a three months notice entitlement rather than twelve.  Then on our page 82 there is a response from the Respondent dated 29 June 1999.  It deals initially with the actual contract and it says:

“I am afraid I can only, therefore, confirm that you are entitled to three months notice and not twelve.

As the Voluntary Severance Panels commence on 1st July, unless we hear from you again by that date we will conclude that you do not wish to apply for voluntary severance.”

To that letter the Appellant responded on 1 July 1999 as follows:

 “As stated in my application I do wish to apply for Voluntary Severance but there is an outstanding issue of contractual Notice Entitlement in the event of Redundancy.

I am awaiting a legal decision, which should be known imminently, and I would appreciate a reasonable extension in order to firm up my position.  Whilst I am now aware of your strict timetable, currently it has created unfair terms.

I confirm my request for Voluntary Severance still stands.”

She then receives a further letter on 16 July from the Respondent confirming that the notice period is three months and then the severance package is gone through.  This correspondence, in our view, makes it clear that although holding out for twelve months as an outstanding issue to be resolved, the Appellant nevertheless wanted to pursue voluntary severance.  She did not rely in making the pursuance of that package on any misleading impression given by the Respondent and the Respondent is therefore not estopped from relying on the contract as we have found it to be.

12.	On the issue as to the circumstances in which the Appellant’s employment was terminated, the finding of the Employment Tribunal was contained in its paragraph 11, our page 7 as follows:

“The Tribunal have reached a unanimous decision with regard to the applicant’s claim that her dismissal was unfair by reason of unfair selection for redundancy.  The Tribunal is satisfied as indicated at the hearing, that the applicant applied for voluntary redundancy and although the issue concerning her period of notice was outstanding, she nevertheless made it quite clear in her letter of 1 July 1999 that she wished to continue with the application.  Her contract of employment therefore was terminated by mutual agreement and the question of selection for redundancy does not arise.”

13.	We consider that there is a lamentable absence in that part of the decision in relation to the finding of facts on which that conclusion was based and of the processes of reasoning.  We do not think it right that we should do anything other than refer this issue back to a new Employment Tribunal for further consideration having heard all the evidence afresh.  That therefore is our order in relation to that other issue.  To that limited extent, therefore, this appeal succeeds.