Appeal No. EAT/1500/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 February 2002

Before
HIS HONOUR JUDGE A WILKIE QC
MS J DRAKE
MR R N STRAKER

MRS B PINNINGTON 	APPELLANT

(1) THE GOVERNING BODY YSGOL CRUG GLAS SCHOOL  
(2) CITY AND COUNTY OF SWANSEA	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P GREEN
(of Counsel)
Instructed by:
Mrs J Watson
Bramble House
Hook
Nr Goole
North Humberside
DN14 5NE	
For the Respondents	MR R PEZZANI
(of Counsel)
Instructed by:
Ms Charlottle Bellis
Dept of Legal and Council Services
County of Swansea
County Hall
Oystermouth Road
Swansea SA1 3FN

JUDGE A WILKIE QC

1	This is an appeal by Mrs Pinnington against the Decision of the Cardiff Employment Tribunal with the Chairman sitting alone, dismissing her application for a finding, amongst other things, of unfair dismissal on the ground that the Tribunal did not have jurisdiction to hear that application.  

2	The question was whether the application of the Applicant which had been delivered to the Employment Tribunal at the end of August 1999 was one which fell within the requirements of section 111 of the Employment Rights Act 1996.  Rather unusually, the reason it was said that it did not fall within that period of time was that it was said to be premature,  the period provided for by section 111 being a period commencing with the effective date of termination and expiring within three months thereafter.  The point in issue was whether the effective date of termination was 1 July 1999 or a couple of days thereafter, as was argued by the Applicant, or 19 October 1999, as was argued by the Respondents both below and to this appeal.  

3	The reason for that difference stems from the statutory nature of the Appellant’s employment.  She was employed as a school nurse at a school maintained by the Second Respondent, but governed, under delegated powers, by the governing body of the school.  Accordingly, her contract service necessarily incorporated the statutory framework imposed by the School Standards and Framework Act 1998, in particular, schedule 16 to that Act, makes comprehensive provision for the staffing of community voluntary controlled and community specialist schools.  

4	Paragraph 29 of that schedule provides that the LEA shall not dismiss a person employed by them to work solely at the school, except as provided by paragraph 25.  The Applicant in this case was employed by the LEA to work solely at the school in question.  Paragraph 25 provides for a step by step process, which involves, respectively, the Governing Body making certain determinations and the LEA performing certain other roles.  Put shortly, the scheme provides for the Governing Body to determine that a person employed to work at their school should cease to work there.  It provides for any determination by them that the person should cease to work, to be notified to the authority in writing.  If the authority is given formal notification of such a determination, then the authority is obliged to dismiss the person, either with due notice, or without notice.  The authority’s obligation is to act within a period of fourteen days, beginning with the date on which notification is given.  

5	Paragraph 27(2) of the schedule imposes on the Governing Body the obligation to make arrangements for giving any person in respect of whom they have made a determination under paragraph 25(1) an opportunity of appealing against it before they notify the Local Education Authority of the determination.  Thus, in essence, the Governing Body, having determined that the person shall cease to work at their school has first to give the opportunity for an appeal to be lodged, if no appeal is lodged, then they may notify the Local Education Authority, which is thereafter obliged to dismiss, but if an appeal is lodged then the Governing Body is obliged not to notify the LEA until the outcome of that appeal  Thus where somebody does appeal against such a determination, the scheme necessarily involves that their employment with the LEA continues at least until the outcome of that appeal, and then only if the appeal is unsuccessful does their employment come to an end.  

6	In the case of this Applicant, the Governing Body came to a decision at the end of June, beginning of July, that she should cease to work at the school.  It communicated that decision to solicitors, apparently then acting for Mrs Pinnington, and to Mrs Pinnington herself.  The letter to her solicitors was dated 29 June and was from the Employment and Community Services Manager of the Local Education Authority, but it seems implicit that in so acting, he was acting as an agent for the Governing Body.  What he says is this:
“I write in respect of the hearing into the capability (ill health) of your client.  I must inform you that the panel, after careful consideration of the facts pertaining to this matter, has decided to dismiss Mrs Pinnington.
I enclose the decision of your Panel for your information.  Your client has a right of appeal (within 7 days of receipt of the decision) against this decision to the Governing Body and I should therefore be grateful if you would inform me if your client should wish to appeal.  
It is for the Council of the City and County of Swansea to consider whether it is able to offer suitable employment.  I shall therefore ask the Management Services Department to contact you in this respect.”

So far, one might say, so good.  What is being recorded is a decision of the panel to dismiss, not an act of dismissal itself.  It indicates that the Governing Body has made the requisite arrangements for an appeal.  Insofar as it refers to suitable alternative employment, it seems that in that respect, it is either inconsistent with, or acting outside of, the statutory scheme, because it is plain that the statutory scheme does not give the LEA the power simply to redeploy somebody, but they must have their employment terminated.  Whether, thereafter, alternative employment is offered under a new contract, would be a matter for the LEA.  

7	On 1 July, however, the Director of Education of the LEA wrote a letter direct to Mrs Pinnington, as follows:
“Further to your Capability (Ill-Health) Hearing of 7th June 1999, I have now received notification of the decision of the Governing Body Sub-Committee, namely that you be dismissed with immediate effect from your employment as School Nurse at [the school].  
I understand this decision may be subject to appeal.
I confirm the decision of the Governing Body and would be grateful if you could inform us as to whether you wish the Authority to seek alternative employment for you.  If this is the case, can you please complete the attached “Redeployment” form and return it to me at the earliest instance.”

It seems to us that this letter is manifestly of a different order from the letter of 29 June.  First of all, it is from the Director of Education, the Chief Education Officer in statutory terms. 
8	Secondly, it not only records the decision of the Governing Body panel as had previously been done on 29 June, but, written as the Chief Education Officer of the Local Education Authority, it informs Mrs Pinnington of the notification to the LEA of the decision of the Governing Body Sub-Committee.  Furthermore, it records his decision, on behalf of the LEA, as confirming that decision.  

9	In addition to that, it expresses itself in terms of her being dismissed with immediate effect, albeit potentially subject to an appeal.  It repeats its canard of the letter of 29 June in respect of the possibility of alternative employment, and, whilst it is right to say that it refers to redeployment which rather tends to suggest a continuity of employment, one must remember that the Chief Education Officer must be presumed to have a working knowledge of the scheme, and therefore must be presumed to have realised that it had no power other than to terminate.  Therefore we must conclude that this offer to consider seeking alternative employment would have to have been on the footing that a new employment would have been entered into.  

10	At any rate, Mrs Pinnington exercised her right of appeal.  In the meantime, however, before the appeal hearing had taken place, or had been completed, she instigated her Industrial Tribunal application.  In a form dated 27 August, in which she was asked to give the dates of her employment, and she indicated that her employment began in February 1989 and ended on 1 July 1999.  That application named two Respondents, the Director of Education of the LEA and the Chair of the Governors of the School.  

11	The Governing Body of the School put in its Notice of Appearance on 19 October 1999. In it they confirmed the dates of employment given by the Applicant as being correct.  In addition to that, the LEA also put in a Notice of Appearance, but some time later, on 15 February in the following year.  In that document the dates of employment given by the Applicant are said to have been correct.  By inference, the reference there must have been to her employment terminating on 1 July.  That was notwithstanding the fact that in the interim, there had been some correspondence in which Mrs Pinnington, then represented, upon applying a certain analysis to the facts, had sought to put forward an alternative date, namely 19 October, as being the effective date of termination.  The LEA had, perhaps somewhat begrudgingly, on 7  January, said that they did not take issue with the date of dismissal, and said that they accepted that the date of dismissal was not as stated on the ET1.  That stands in stark contradiction to the position being taken on 15 February, which expressly stated that the dates of employment given by the Applicant on her ET1 were correct.  

12	At any rate, the appeal process continued notwithstanding the commencement of Tribunal proceedings, and it appears that there was a hearing of the Appeal which took place on 4 October.  The outcome of that appeal process was that the appeal was dismissed and the letter, sending Mrs Pinnington notification of this outcome, was dated 19 October 1999 and was from a Mr Davey, the Personnel and Training Manager, and he writes as follows:
“Further to your appeal of the 4th October 1999 against the decision of the Personnel Sub-Committee of [the school], that you be dismissed on grounds of capability due to ill health, I write to confirm the decision of the Governing Body Appeal Committee not to uphold your appeal.
You are therefore dismissed with effect from 1st July 1999 as outlined to you in my letter of that date.  You are entitled to 10 weeks pay in lieu of notice and I will authorise our salaries section to action this payment with immediate effect.”

Of course, if the Governing Body, and in particular the LEA, had been following the statutory procedure, the letter of 19 October could not have been written in the terms that it was because the statutory procedure, had it been followed, would have resulted in the Governing Body notifying the LEA of the determination that she ceased to work at the school, only after the outcome of the appeal and, consequently, the obligation upon the LEA to dismiss her would only have arisen at that point.  Thus the earliest date for her dismissal to take effect would have been 19 October.  It was on the footing that the Governing Body and the LEA either had in fact, or were, in law, obliged to be regarded as having followed that statutory procedure to the letter, that gave rise to the argument that the effective date of termination of the Applicant’s employment was 19 October, and that consequently, her application of 27 August was premature and therefore invalid.  

13	The Tribunal Chairman, in his Decision in the form of Extended Reasons, took the approach in paragraph 15 and 16 that the statutory scheme imposed a procedure which resulted in the conclusion that the only lawful dismissal which could have been effected by the LEA, would have been one which, at the earliest date, took effect on 19 October and that consequently, the effective date of termination was 19 October.  He seemed to have relied on an authority of the EAT in Howard -v- Brixington Infants School -v- Devon County Council to establish the fact that if the LEA acted ultra vires the statutory scheme, then the determination of the contract of employment could only be valid if one substituted and superimposed on the event, the procedure, hence 19 October date for dismissal.  

14	Mr Green attacks the lawfulness of that approach.  He does so by reference, principally, to a Decision of the Court of Appeal in Cornelius -v- London Borough of Southwark The Times 12 February 1998.  Putting it shortly, the Court of Appeal concluded that if an LEA failed to comply with the statutory procedure incorporated into the contract of employment, nonetheless, those employed under that contract were still capable of being dismissed if the LEA had repudiated the contract of employment and that repudiation is accepted by the employee.  In other words, the contract of employment does not continue willy nilly, until the procedure is carried out lawfully.  If the procedure is carried out unlawfully, resulting in an apparent termination, then if the employee acts consistently with that termination, they have accepted the repudiatory breach and the contract is consequently terminated.  

15	The case of Howard -v- Brixington Infants School -v- Devon County Council, to which reference was made by the Chairman of the Tribunal is, it would seem on a close reading, similarly a decision to the effect that a breach of statutory procedure could, nonetheless, result in a termination of the contract, and that a Tribunal approaching the question on the basis that it was not possible for there to be a breach of contract by failing to pursue the statutory procedures, would be in error of law.  It seems to us that manifestly in this case, the Tribunal Chairman has erred in law in appearing to feel that he was obliged to treat the procedure, imposed by statute, as so strong that the only lawful way in which the employment could be terminated was pursuant to that, and therefore discounting any possibility of its having terminated prior to 19 October.  

16	However, Mrs Pinnington applied to the Tribunal for a review and one of the matters which she used to support the review was the Decision of the Court of Appeal in Cornelius -v- London Borough of Southwark to which we have already referred.  The review took place on 26 June 2000.  The Chairman rejected the application for a review, but seemed to have changed the ground for his decision by deciding that if one looked at the terms of the correspondence surrounding the decision taking process of the Governing Body and the LEA, that correspondence was consistent with the parties having understood that the contract of employment continued during the appeal process, so that the employment was only ended when the appeal process came to an end.  In so doing, he drew on another Court of Appeal authority, subsequent to the Cornelius case, namely Drage -v- Governors of Greenford High School. 

17	We have had that case referred to us and we take from that the following points:  first of all the critical question arising is where contractual provision is made for an internal appeal, whether on a true view during the period between the initial notification and the outcome of the appeal, the employee stands dismissed, with the possibility of reinstatement, or suspended, with the possibility of the proposed dismissal not being confirmed, and the suspension thus being ended.  Second in so doing, we are, and the Tribunal was, obliged and entitled to take account of the surrounding circumstances, subsequent events and, in particular, the contractual position.  Third the Tribunal should remind itself that whilst a wrongful dismissal is still a dismissal, the Court should not too readily conclude that a responsible body such as a Governing Body would have adopted a procedure which would place them in clear breach of the Articles of Government, the material parts of which are mandatory under legislation.  

18	We, and indeed the Tribunal, were also obliged in looking at the terms of the correspondence  to apply the tenets of construction, as reflected, amongst other cases, in the Decision of the EAT in Chapman -v- Letheby & Christopher Ltd, [1981] IRLR 440 to which we have also been referred, the approach being that a letter relied on as notification of immediate termination of employment should be construed in the way that an ordinary reasonable employee in his position would understand by the language of the letter, and in the light of the facts known to him at the date of receipt.  

19	The Chairman of the Employment Tribunal in the Review Decision approached it in the following way.  First of all, he noted that in the Drage case, as in the present case, the inaccurate information disseminated by the Respondent does not determine legal status.  He went on to say that he was satisfied that, despite the unfortunate drafting of some letters, the matters set out at paragraph 13 of the original Decision namely: that the letter of 1 July sent by the Respondents to the Applicant was not inconsistent with there being a suspension; that the offer of alternative employment was wholly inconsistent with the termination of employment; and that this was recognised by the Applicant’s representative when she concluded that there had been no dismissal in July remained valid.  Mr Green contends that, even if it is appropriate to have regard to what is said in the Review Decision, in deciding what should follow from our conclusion that the approach in the original Decision was manifestly wrong in law, the Review Decision contains two clear errors of law.  

20	First of all, the approach to the construction of the letter of 1 July, namely by considering whether it was not inconsistent with there being suspension, flies in the face of the attitude of the Court towards the proper construction of letters proffered by employers to employees which speak of immediate dismissal, or dismissal with immediate effect.  He says it is turning the law on its head to see whether such a letter is not inconsistent with there being a suspension, and that the appropriate approach is to construe the letter against the person writing it, and to look at it from the point of view of the ordinary, reasonable employee, and how she would understand it in the light of the facts known to her at the date of receipt.  We have to say that we find this a compelling argument, and it therefore seems to us that this was an erroneous approach by this Chairman to the construction of the letters immediately surrounding these events.  

21	Secondly, he makes the point that to consider the offer of alternative employment as wholly inconsistent with the termination of employment, constitutes a manifest error of approach.  First of all, the letter speaks for itself and certainly does not talk about redeployment as a continuing employee, but on its face, talks about whether she wishes the Authority to seek alternative employment, a phrase which is, at best, ambiguous.  Secondly, it ignores that which we have already referred to, namely that the author, namely the Director of Education must be presumed to realise that the procedure under which he was working did not permit the LEA to regard her employment as continuing for the purpose of redeploying her, but rather, had no option but to terminate her employment, only thereafter, if they were minded to do so, should they look for alternative employment, under the new contract of employment.  Therefore, in our judgment, that is a second clear error of law committed by this Chairman, in purporting to construe the correspondence surrounding these events.  

22	It therefore follows from our conclusions at paragraphs 15 and 21 that we are constrained to uphold this appeal.  The question therefore arises what Order should we make?  We are invited by Mr Green to substitute our own judgment for that of the Chairman and to decide whether there was a breach of procedure such that the parties at the time manifestly understood that the employment was being brought to an end with immediate effect on 1 July, regardless of what the procedure might have required.  

23	Mr Pezzani, on behalf of the Respondents, whose careful and constructive submissions we have been very grateful to receive, suggests that we should simply send the matter back, in that we are in no position to work our way into the minds of the parties at the relevant time.  It seems to us that in a case where the parties have been at great pains, throughout, to express themselves in writing, in a variety of documents in a variety of ways, that we are in at least as good a position as was the Chairman to come to a view whether the parties at the time understood that there was a termination on 1 July, albeit it would have been as a result of a repudiatory breach of contract.  

24	In our judgment, the events surrounding and subsequent, which reflect what the parties actually thought all point the one way.  The letters of 29 June, 1 July and 19 October are all in terms of the immediate termination of employment, with effect from 1 July 1999.  Absolutely none of them speak in any way consistently with there being a decision which was being suspended, pending the outcome of an appeal.  

25	Furthermore, the parties in their responses to the litigation, commenced by Mrs Pinnington, were equally consistent in their approach.  Mrs Pinnington stated that her employment ended on 1 July.  The Governing Body, very shortly afterwards, accepted that that was so.  The LEA, in February, and notwithstanding the intervention of legal advice to the contrary from Mrs Pinnington’s then representative, expressly accepted that 1 July was the date upon which her employment terminated.  

26	The only contradictory voice was that, essentially, of the adviser to Mrs Pinnington who, perhaps understandably, was applying a legal analysis to a factual situation, and was advising Mrs Pinnington what the true legal position was, and the LEA which, somewhat reluctantly, appeared to go along with that, at least initially, but then reverted to its initial view, namely that the termination was on 1 July.  It seems to us that when we are seeking to discover, from the documentation, what the parties thought at the time, what a legal adviser may subsequently have thought ought to have been the legal position, is of little consequence.  Therefore, our view is that overwhelmingly as a matter of fact, the parties did realise and did intend that her employment should end on or about 1 July.  It therefore follows that her application dated 27 August, received by the Tribunal office on 31 August, was an application which was within the statutory period.  It therefore follows that it was a valid application, and we order that the appeal be allowed, and we substitute our Decision, that it was a valid, timeous, application for that of the Employment Tribunal.