Appeal No. PA/1468/02 DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 March 2003

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

DR J M McNALLY	APPELLANT

UNIVERSITY OF BRIGHTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL UNDER RULE 3 (10)

Revised

	APPEARANCES

For the Appellant	DR J M McNALLY
(the Appellant in Person)	

HIS HONOUR JUDGE PETER CLARK

1	The Appellant, Dr McNally, was employed by the Respondent, Brighton University as a Senior Lecturer.  In October 1998 she attended a conference in Germany; the Respondent contended that she did so without authority and disciplinary proceedings were instituted.  She was accused of gross misconduct, an allegation which she strenuously denied and still denies.

2	A disciplinary hearing was fixed for 5 November 1998, but on the preceding day she submitted a written notice of resignation in these terms:

“Dear Sir David Watson [the then Director of the University],
I herewith wish to tender my resignation under the normal contractual conditions.”

That was treated as a notice of resignation to take effect two months hence, that is on 4 January 1999, and on the same day the Respondent accepted that resignation.

3	By letters dated, first 11 and, second, 24 November 1998 the Appellant sought to withdraw her resignation but the Respondent would not agree to its withdrawal.  It is trite law that notice of resignation, once given and accepted by the employer, cannot be unilaterally withdrawn.  Accordingly, her employment, so an Employment Tribunal sitting at Brighton on 23 September 2002 found, terminated on 4 January 1999.  At that hearing both parties were represented by Counsel and the Tribunal record that the effective date of termination was agreed as 4 January 1999.

4	The Appellant did not present her complaint to the Tribunal, alleging unfair dismissal and/or constructive dismissal, breach of statutory duty and breach of natural justice, until 20 May 2002.  The only live cause of action was that of unfair dismissal (the Tribunal having no jurisdiction to consider the complaints of breach of statutory duty and breach of natural justice in a vacuum).  The time for making a complaint of unfair dismissal is three months from the effective date of termination, subject to an escape clause where it was not reasonably practicable to make the claim within three months and, if not reasonably practicable, where the claim is made within a reasonable time thereafter.

5	The Brighton Tribunal, in a decision with Extended Reasons dated 26 September 2002, found:

(1)	The effective date of termination was 4 January 1999 and thus the claim was made outside the primary limitation period.

(2)	The Applicant had been unwell but there was no medical reason why the claim could not have been presented after August 2000.

(3)	That she had taken advice from three, if not four, solicitors and an experienced trade union official.  Even if it was not reasonably practicable to present the complaint within three months she had not presented it within a reasonable time thereafter.

Thus the claim was held to be time-barred and the complaint dismissed.  Against that decision the Appellant entered a Notice of Appeal dated 4 November 2002.

6	On 20 December 2002 the Registrar sent a letter (misdated 20 September) indicating that in her view the Employment Appeal Tribunal had no jurisdiction to entertain the appeal, pursuant to Rule 3 (7) of the Employment Appeal Tribunal Rules of Procedure.  On 27 December the Appellant replied indicating that she was dissatisfied with that decision and accordingly the matter was referred to me under Rule 3 (10).

7	The EAT’s jurisdiction is limited to correcting errors of law by the Employment Tribunal: section 21 (1) of the Employment Tribunals Act 1996.  The question for me, having read the submissions made in writing by Dr McNally and having heard her at some length orally, is whether this appeal does raise any point or points of law.

8	The main focus of Dr McNally’s submissions is directed to the Tribunal’s finding that the effective date of termination in this case was 4 January 1999.  Dr McNally does not accept that it was agreed on her behalf by Counsel that that was the effective date of termination; indeed she has submitted on more than one occasion that she never has been dismissed.  If that were right then it must follow that the claim for unfair dismissal is misconceived because it is a prerequisite that there should first be a dismissal.

9	She points to the fact that she was unwell on 4 November 1999 and I have been referred to a general practitioner’s certificate referring to an ear and throat infection which precluded her from attending the disciplinary hearing which was due to be held the following day on 5 November 1999.  Nevertheless, she did sign that one line letter of resignation and it was taken into the University by her partner.

10	With the best will in the world I am quite unable to see any point of law here raised.  Unsurprisingly Dr McNally is anxious to get to the merits of her claim of unfair dismissal.  However, first she must overcome the limitation hurdle.  As to that, there is no question.  This was an effective resignation accepted by the employer.  Her attempt to withdraw it one week later was rebuffed by the Respondent.  This is not a case of resignation in the heat of the moment, immediately followed by an attempt on the part of the employee to withdraw it: see Martin v Yeomen Aggregates Ltd [1983] IRLR 49.

11	Accordingly, I am not persuaded that any point of law is made out in that part of the appeal.

12	She further complains of various aspects of the Tribunal hearing which she says amount to procedural unfairness.  First, she complains that the Chairman indicated during the hearing on two occasions that any reasonable person would accept the employer’s offer of a reference in exchange for withdrawal of the application.  Assuming that that was said, that does not, in my view, come anywhere near amounting to bias.  It is not unusual for Employment Tribunals or the Chairman to give an indication to parties that their position is potentially difficult.

13	Second, she complains that no concession was made as to 4 January resignation.  That concession is recorded by the Tribunal but, even if it were not conceded, the finding that the effective date of termination was 4 January 1999 was in my view inevitable on the facts of the case.  A suggestion that she signed the resignation letter and had it delivered under duress not, so far as I can see, raised below, seems to me an impossible argument.

14	There is also a complaint that a copy of the Respondent’s bundle was not handed to her side until the hearing began.  That said, it appears that Counsel then appearing on behalf of the Appellant did not seek a short adjournment.

15	Finally, she refers to the order for costs made against her by the Tribunal and contends that her application was not misconceived and, further, that the Tribunal did not take into account her limited means.

16	As to the first point, plainly it was.  As to the second point, the Court of Appeal have decided in the case of Kovacs [2002] ICR 919, that the means of a party ought not to be taken into account when a Tribunal is considering whether to exercise its discretion in favour of making an order for costs under Rule 14 of the Employment Tribunal Rules of Procedure 2001.

17	In these circumstances, having considered the arguments advanced by Dr McNally, I conclude that the Registrar was correct in finding that the EAT has no jurisdiction to entertain this appeal and accordingly I shall direct that no further action be taken upon it.