Appeal No. EAT/748/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE,
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 12 September 2001

Before
MR RECORDER UNDERHILL QC
MR K EDMONDSON JP
MISS A MACKIE OBE

MR J A SHOOTER	APPELLANT

DORLUX BEDS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised 29/10/01

	APPEARANCES

For the Appellant	MR A GUMBITI-ZIMUTO
(of Counsel)
Instructed by: 
Messrs Runham Kirkbride
Gibbs Pollard
Solicitors
Octagon House
32-36 Little Horton Lane
Bradford
BD5 OAL

MR RECORDER UNDERHILL QC

1	This is the preliminary hearing of an appeal against the decision of an Employment Tribunal in Leeds, dismissing the Appellant’s claim for unfair dismissal on the grounds that it was presented out of time.  The Appellant has been represented at this hearing by Mr Gumbiti-Zimuto to whom we are indebted for his succinct and clear submissions.  

2	It is common ground that the Appellant’s application to the Tribunal was “presented” on 11 January 2001.  It follows that for the application to have been in time, the effective date of termination of the Appellant’s employment must have occurred on or after 12 October 2000.  The Tribunal recites in paragraph 1 of its Extended Reasons that the Appellant’s employment ended on 11 October. Since on that basis the claim was plainly prima facie out of time, the Reasons go on to consider the question of reasonable practicability under Section 111 (2)(b) of the Employment Rights Act 1996.  The Tribunal held that the Appellant, who had had advice from solicitors for some weeks, had not established that it was not reasonably practical for him to present his claim in time: there is no appeal from that finding.

3	Before us Mr Gumbiti-Zimuto contended that the Tribunal was wrong in treating 11 October 2000 as the effective date of termination.  His argument is as follows.  It is common ground that there was a disciplinary hearing on 10 October 2000, at the end of which the Appellant was told that he was being dismissed: in his witness statement, which was before the Employment Tribunal, he said at paragraph 5:

“After the disciplinary hearing my Employment was terminated by my employers on 10th October 2000.”

On the following day, the Respondents wrote a letter setting out the reasons for the dismissal. The letter starts:
“Please accept this letter as confirmation of the decision to summarily dismiss you from your employment with Dorlux Beds Ltd.”

The reasons are then given at considerable length, but in the ante-penultimate paragraph the letter states:
“We consider your actions to be gross misconduct and as a result you have been summarily dismissed from the company with the effective date of termination of your employment being Tuesday the 10th October 2000.”

(Slightly confusingly, the running heading on the consecutive pages of the letter is “termination of employment: 11/10/00”; but a date of 11 October 2000 would still leave the application out of time).  The grounds of appeal state that the letter was sent by post and was not received by the Appellant until 13 October 2000.  The correct construction of that sequence of events, submits Mr Gumbiti-Zimuto, is that the effective dismissal was not the oral dismissal on 10 October, but the written dismissal.  And in accordance with established authority, a dismissal by letter could not - whatever date of termination the letter purported to state - take effect until it was received, i.e. 13 October.

4	It is, however, clear and Mr Gumbiti-Zimuto acknowledges, that these submissions were never made to the Tribunal at the hearing (at which the Appellant was represented by a solicitor).  The IT1 identified the last date of the Appellant’s employment as 11 October 2000, and that date was expressly agreed in the IT3.  We have already referred to the Appellant’s written witness statement in which he gives a date of 10 October.  No argument was presented to the Tribunal that the true effective date of termination was 13 October, or indeed any other date later than 11 October.  In those circumstances, it seems to us, the Tribunal was entitled - indeed obliged - to accept the date on which the parties had agreed.  Although this Tribunal is entitled, in the interests of justice, to allow a point to be taken on appeal which was not taken in the Employment Tribunal, the authorities clearly establish that it should only do so in the most exceptional circumstances, particularly where the party was represented and where the new point would require the examination of further facts: the authorities concerned are well known, and start with the decision in Kumchyk v Derby City Council [1978] ICR 116.  A further factual enquiry would certainly be necessary here, if the point were allowed to be taken, because the Tribunal would have to establish not only the facts about the posting and receipt of the letter of 11 October, which might or might not be controversial, but also the facts relevant to the effect of the conversation of 10 October 2000 - that is to say whether in the circumstances it should be treated as a dismissal which was immediately effective.  

5	There has in the past been some suggestion in the authorities that the position is different where the new point which is sought to be taken relates to jurisdiction, but that issue was recently considered in Glennie v Independent Magazines (UK) Ltd [1999] IRLR 720, in which the Court of Appeal, on facts very close to those of the present case, held that the Employment Appeal Tribunal had been wrong to allow a new point to be taken as to the effective date of termination of the employee.  Mr Gumbiti-Zimuto seeks to distinguish the situation in Glennie from that which arises here because he says that there was, on the face of the material before the Tribunal, a discrepancy as to the effective date of termination.  The Appellant’s witness statement and the letter of 11 October both stated that the dismissal took effect on 10 October 2000, but the IT1, accepted in the IT3, gave the date as 11 October.  The Tribunal in its Reasons accepted the latter date and must, he submits, therefore have been taken to have been treating the letter, rather than what was said at the meeting on 10 October, as containing the effective dismissal; and he submits that having proceeded on that basis, the Tribunal was obliged to consider the question of when the letter was received by the Appellant, which it failed to do.  That argument, though subtle, seems to us to read far too much into the fact that the Tribunal recited the date of 11 October as the last date of the Appellant’s employment.  It is a reasonable inference that the Tribunal took that date because it was the date acknowledged in the formal documents before them.  It seems to us quite unrealistic to suppose that the Tribunal had considered, even if it noticed, the discrepancy to which Mr Gumbiti-Zimuto refers and had made a conscious decision to treat the letter rather than the events of 10 October as constituting the effective dismissal.  What the Tribunal simply did was to accept the undisputed date given in the IT1 and IT3.  

6	There is a suggestion in the grounds of appeal that the Tribunal was under an obligation to act “inquisitorially” and to consider the issue of the effective date of termination even if the parties did not raise it.  That is, with respect, plainly bad law - see most recently, Mensah v East Hertfordshire NHS Trust [1998] IRLR 531.  

7	It seems to us, therefore, that this appeal on those points has no prospect of success, and we propose to dismiss it at this stage.  

8	Two other points are raised in the grounds of appeal, though not developed by Mr Gumbiti-Zimuto.  

9	The first is that the effective date of termination was extended by the appeal process.  The Appellant exercised his right of appeal and his appeal was not dismissed until 1 November.  It is suggested in paragraph 3 of the grounds of appeal that that gave rise to an extension of the employment until that date.  The appeal on this ground faces the same difficulty as the ground which we have just considered; this point was not taken before the Tribunal.  In any event, it is clear law that where an employee has been clearly dismissed on a particular date, the fact that he may then be given a post-dismissal right of appeal does not extend his employment in circumstances where the appeal is unsuccessful.  

10	The other point taken in the grounds of appeal is that what would otherwise be the position under the statute is superseded as a result of the Appellant’s right to a fair trial under Article 6 of the European Convention on Human Rights.  The argument is that the right to a fair trial requires that the provisions as to time be read as if time did not start to run until the end of the minimum period of statutory notice to which the employee is entitled under Section 86 of the 1996 Act.  There are many difficulties with this submission which we do not need to elaborate, but the most straightforward answer to it is that we can see no arguable case that the existence of a reasonable time limit is in any way inconsistent with the Appellant’s Convention right to a fair trial.  In any event, even if there were an arguable point here, it would not have enabled the Employment Tribunal, and would not enable this Tribunal, to set aside the clear provisions of the 1996 Act: we are satisfied that the position contended for in the grounds of appeal would go beyond mere purposive construction and would involve a plain contradiction of the statutory provisions.  

11	We accordingly dismiss this appeal.

12	Following delivery of the forgoing, Mr Gumbiti-Zimuto asked for permission to appeal.  We refused on the basis that there is no arguable prospect of success.