Appeal No. EAT/482/91 

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 19 May 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MRS T MARSLAND

	MR T C THOMAS CBE

(1)  MR A T DAWSON	APPELLANTS
(2)  MR R BURNS

MINISTRY OF DEFENCE	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR A ENGLAND
(REPRESENTATIVE)
Devondale
Carr Lane
Sutton on the Forest
York YO6 1EB

For the Respondents	MISS R THORNTON
(OF COUNSEL)
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
London SW1H 9JS

	JUDGE HULL QC:	In this case Mr Burns and Mr Dawson appeal to us from a decision of the Industrial Tribunal sitting at Leeds as long ago as 25 April 1991.  The Tribunal were chaired by Mr Morris, who had his Industrial Members with him.  On that occasion, they rejected complaints of unfair dismissal made to them by Mr Burns and Mr Dawson.

	Mr Burns and Mr Dawson had been employed for substantial periods by the Ministry of Defence.  Mr Dawson was first employed in October 1976, and he was then aged 16.  Mr Burns was first employed in 1985.  Therefore they were both long-standing employees. 

	They were accused by their employers in 1990 of having abused the system of overtime and of having made false claims.  On the 17 January 1990 they were dismissed.  The contracts of employment which these men had with the Ministry contained terms as to appeals involving the Civil Service Appeal Board.  This is a body which, as we understand it, is set up independently of the Civil Service, and the Chairman and Members are not, or at any rate not necessarily, Civil Servants; they act independently.  Among their other functions, one is to entertain appeals by those who say they have been unfairly dismissed by the Department of State which employs them.

	These provisions are set out from page 50 onwards in our bundle, where the constitution of the Board is dealt with.  At page 50 we read that the Appeal Board has four functions.  The first is to decide whether a Department's decision to retire an individual early, or to dismiss, is fair.  Then there is a procedure set out by reference.  At the next page it is stated, correctly:

"In addition to the entitlement to appeal to the CSAB a Civil Servant may also have a statutory right under the provisions of the Employment Protection (Consolidation) Act 1978 to appeal against unfair dismissal to an industrial tribunal."

	At page 53, paragraph 10141:

"The Board will decide whether the decision to retire early or to dismiss was fair. If the Board decides that it was not, it may recommend to the Head of the Department either that the appellant should be reinstated or re-employed or specify what compensation, or additional compensation in a case of early retirement, should be paid.  If the Board considers that some other action is more appropriate it will recommend accordingly."

	Then at page 54, which follows, at paragraph 10143:

"If a recommendation to reinstate or re-employ is made, the Head of the Department will decide whether to accept the Board's recommendation and this decision will be final.  In cases of early retirement on the grounds of limited efficiency or structure, the Head of Department will normally be expected to accept the recommendation of the Board unless there are overriding reasons to the contrary and, before such a recommendation is rejected, the Treasury must be consulted about the possibility of transfer to another department.  If a recommendation to reinstate or re-employ is rejected by the department, the Appeal Board will consider whether to award compensation, or additional compensation in the case of early retirement."

	Then at paragraph 10145:

"The department must pay any compensation awarded by the Appeal Board."

and in certain circumstances the approval of the Treasury must be sought.  But subject to that, the scheme is that the Board will consider what recommendation to make.  If they recommend reinstatement or re-engagement, then the Department will decide whether to accept that.  If there is no acceptance, then the Board will consider what compensatory award and compensation will be paid, subject to Treasury approval.

	Those provisions were in substance repeated in a document which we are told is part of the contract of employment for each of these two gentlemen.  At page 59 of our bundle there is an important provision of the contract.  

	Paragraph 6:

"Termination of employment will not be delayed by an application having been made to the CSAB."

and at page 60 there is a repetition of what we have already referred to concerning the recommendations of the CSAB and the possibility of compensation in respect of those which are rejected.

	So that was the situation when these two men were dismissed.  Each of them made an application to the Industrial Tribunal, as well as appealing to the Board.  Each of them complained that he had been unfairly dismissed.  Mr Burns applied on 22 March 1990 and his application proceeded to some extent.  But Mr Dawson did not apply until the 18 April 1990.  It was therefore held by the Industrial Tribunal on the 9 July 1990 that his application was out of time.  He had been dismissed, he said, on the 17 January.  I should have said that in their answers to these applications the Department agreed that the men had indeed been dismissed on the 17 January 1990.

	Now as I say, Mr Burns' application was on the face of it a valid application, but it was in fact withdrawn on the 2 December 1990.  He said that that was without his authority, but it was in any event withdrawn.  There was an appeal to the Board by both men with the guidance, we understand, of the Trade Union; those appeals were successful in a limited sense.  We are not concerned, of course, with the correctness of the decision to dismiss, or the substance of the allegations which were made.  

	We understand though, from what we have been told this morning, that the Board found each man, in some way or other, blameworthy.  They nonetheless recommended re-engagement.  In purported compliance with that a letter was duly written by the Department, to be found at page 61.  It is a letter to Mr Dawson but we understand that a similar letter was written to Mr Burns.  That letter says as follows:

"You were advised on 5 September 1990 that the Department was reconsidering the findings and recommendations of the Civil Service Appeal Board before which you appeared earlier this year.  As a result of that consideration the Department has decided to accept the Board's recommendation that you should be re-engaged.  You should therefore contact this office as soon as possible to discuss when and if you would be available to accept a further post with the Department.

You are reminded that the charges raised against you were proven and that the Department regards the loss of income you have suffered since the dismissal notice was issued, together with the consequential effect on seniority and pension rights, as a sufficient penalty.  You should be aware that you will still be required to repay the amount of overpayment notified in my letter dated 28 February 1990.  I must add that should you come to further disciplinary notice the consequences could be more serious and may include dismissal."

	That letter was plainly offering what in lawyers' terms, and the terms of the Act, was re-engagement rather than reinstatement.  It was made perfectly clear that the substantial break which had occurred was not to be treated as part of the period of employment, and that pension rights were therefore affected adversely.  The sum, which the Department said had been overpaid, was still payable.  Moreover, if there were any further incidents of complaint, what had occurred would be taken into consideration, or might be.  So this was very far from being an unqualified welcome back to the fold, or a restarting as it has been called.  But it was, however grudging, an offer of re-engagement.

	As to the question whether it complied with the Board's recommendations, some doubt has been cast on that.  On 6 September 1991, the offer not having been resulted in re-engagement, Mr England, the representative of these two men, was written to by the Board, thanking him for his letters, and saying:

"After a careful examination of all the information received from yourself and from the Department I am quite satisfied that the Department did accept fully the Board's recommendation to re-engage Messrs Burns and Dawson.  The subsequent withdrawal of the offer of re-engagement was on the advice of the Treasury Solicitor following the submission of appeals against "constructive dismissal" by Messrs Burns and Dawson at an Industrial Tribunal.

Since the Department accepted the Board's recommendation I believe that there are no grounds for the award of compensation."

	That was what was said.  

	On the 16 January 1991 both these gentlemen, (by then of course, their original applications had either been dismissed in the case of Mr Dawson, or withdrawn in the case of Mr Burns) presented fresh applications to the Industrial Tribunal.  Those are to be found at pages 26 and 29 of our bundles.  In those applications they complain of unfair dismissal.  They each say, on pages 27 and 30:

"I was dismissed on 17 January 1990.  However, as provided for in civil service rules (my conditions of employment), I had a right of appeal to the Civil Service Board (CSAB)."

	In those applications each man complained that in fact he had been dismissed not on the 17 January but on the 27 November 1990 which, as I say, was the date of the letter offering re-engagement.  On the same date the Ministry of Defence wrote to Mr Burns, and I understand it in the same sense to Mr Dawson:

"I wrote to you on 27 November 1990 advising you that the Ministry of Defence had accepted the Civil Service Appeal Board recommendation that you should be offered re-engagement.  As there are several jobs which I need to fill over the next few weeks, I would welcome your early decision as to whether you wish to take up the offer which has been made.

I enclose a stamped addressed envelope to facilitate your reply."

	This of course was the best part of two months since the offer had been made.  Two days after that, there were very circumstantial letters written by Mr Burns and Mr Dawson and I suppose it is not unfair to think that they had been perhaps drafted by Mr England, or one of his expert colleagues; taking various contentious points over the offer and making enquiries about this offer of re-engagement.  Those letters were not replied to and on the 26 February two letters were written to the men, by the Ministry of Defence:

"I refer to my letters dated 27 November 1990 and 16 January 1991 in which you were offered re-engagement, ie a new job.

In the light of the lack of a positive response in your letter dated 18 January 1991 the offer of further employment is now withdrawn."

	So the offers had been made.  They certainly, in any contractual sense, had not been accepted, although an enquiry had been made concerning them.  Above all, the two men were now complaining to the Industrial Tribunal that they had been dismissed on the 27 November and would continue with their applications on that basis.  That application continued and the matter came before the Industrial Tribunal at Leeds and the decision is at page 5.  I will not read that decision, with which everybody I think in this room is familiar by now.  They dealt with the history of the matter.  They said that Mr England, who appeared in front of the Tribunal as in front of us, had drawn attention to two cases, Sainsbury v Savage [1980] IRLR 109 and Howgate v Fane Acoustics [1981] IRLR 161.  

	They said:

"He submits that the effect of the appeal was to suspend the contract of employment and that the appeal was successful and that therefore means that the contract of employment did not terminate.  That clearly is not the case.  The relevant rules cited above say that the termination of employment will not be delayed by an application made to the CSAB.  The CSAB is an outside body which can only make recommendations to the employer.

It is not true to say that the appeal was successful, only in one sense namely because what happened was that the Civil Service Appeal Board considered the matter and they recommended there should be re-engagement ..."

and then they referred to the letters, or some of them, which I have referred to.  They go on in paragraph 6:

"What the applicants claim is that the offer of reinstatement [and one would say that it could only be regarded as reinstatement by stretching language, certainly not in any technical sense] in some way rendered their earlier dismissal non-effective and so the offer of different terms of employment constituted a breach of a contract of employment existing between them and the Ministry of Defence and that entitled them to resign without notice by reason of the employers conduct and have that treated as a dismissal by the employer at that time in November 1990 and that therefore they were entitled to present these 2 applications, which were different from the earlier applications dismissed, and that the date being a date in November when termination occurred the applications are in time."

	Then they looked at Howgate v Fane.  They said:

".. that is a case which deals with continuity of employment and there, whatever criticisms may be levelled against the way that appeal was dealt with, it is clear that it was dealing with a specific situation where an employee was "re-started", to use a neutral term, and it was then doing what it would be doing at the end of a second termination of employment, looking back as to whether there was continuous employment and what the effect of that earlier break was and it was found that because the contract had been 're-started' the effect on continuity was that there was continuous employment, in effect that there had been a complete reinstatement."

	Then there was a reference to Section 69 of the Act of 1978.  They went on:

"Even if there had been a recommendation as to reinstatement in this case that was by an outside body recommending it to the employer so the finding of the CSAB would not automatically continue the contract of employment.  If the employer had offered reinstatement and that had been refused the employment would not have been extended even to the date of the offer of reinstatement but would have been seen as terminating still in January 1990.  In this case there was an offer of re-engagement which was refused and again the effective date of termination must be the date in January 1990.  One cannot get away from the facts of each particular case and in deciding this case as in all such cases one has to look at the terms of the contract of employment and it is clear in this case that there is no provision in the contract of employment for extending, for holding in suspense the dismissal, or the date of dismissal, while there is an appeal."

	They say it might be different in the case of other contracts of employment but that is not this contract.  Mr England on behalf of the two gentlemen, Mr Burns and Mr Dawson, has appealed to us and has been good enough to put his submissions in writing, and we have read them.  

	I must now refer briefly to the two cases on which Mr England relies.  Sainsbury v Savage [1980] IRLR 109 was a case in which Mr Savage was summarily dismissed from his job as a personnel research officer with the respondent company in February 1978, less than four months after his employment began.  He appealed against this decision in accordance with the right given to dismissed employees under the company's disciplinary procedure.  Paragraph 4 of this procedure provided that "Pending the decision of an appeal to a director against dismissal, the employee will be suspended without pay but, if reinstated, will receive full back pay for the period of the suspension".  Clearly that is using "reinstatement" again in the technical sense.

	Mr Savage's appeal was dismissed and he was notified of this decision on 1 June 1978.  When Mr Savage made a complaint of unfair dismissal, the company argued that he did not have the requisite 26 weeks' continuous service.  Mr Savage argued that his employment was not effectively terminated until 1 June 1978, when he was told that his appeal had failed, at which date he had the required service.  An Industrial Tribunal found in favour of Mr Savage on this point.  The company appealed against this decision.  The Employment Appeal Tribunal allowed the appeal and the Court of Appeal held as follows:

"The Employment Appeal Tribunal had rightly held that the effective date of termination of the appellant's employment was the date on which he was summarily dismissed, not the date on which he was informed that his appeal against dismissal had failed, and that, because at the effective date of termination he did not have the requisite 26 weeks' continuous service, the appellant was not qualified to make a complaint of unfair dismissal."

	They said that they found it very difficult to improve on the reasoning of the Employment Appeal Tribunal and they upheld the findings of this Tribunal.  They cited from this Employment Appeal Tribunal's decision, Lord Justice Brightman said:

"It seems to me clear that, to take an example, if an employee is dismissed on 1 January on the terms that he then ceases to have the right to work under the contract of employment, and that the employer ceases likewise to be under an obligation to pay the employee, the contract of employment is at an end.  That must be the position in the present case unless paragraph 4 can be read as saving the contract of employment in all the circumstances pending conclusion of the appeal.  In my view, the contract of employment is saved if the appeal succeeds, because the employee is reinstated with full back-pay.  But if the appeal fails, then the inevitable result is that the employee is not only deprived of his right to work as from 1 January, but also of his right to remuneration from that date.  If he has had no right to work after 1 January and no right to be paid after 1 January, the contract of employment must have been determined as from 1 January."

	Mr England also refers to Howgate v Fane Acoustics Ltd [1981] IRLR 161.  In that case there was a successful appeal by the dismissed employee and reinstatement as a result.  So he was put back, so to speak, in statu quo ante, that is to say he was put back with all matters as they stood and this Tribunal held that in those circumstances his employment was to be deemed to be continuous.  As they say in their decision:

"It is implicit in every contract of employment that where a person appeals against a decision to dismiss him, the intervening period has to be treated as one of suspension and the ultimate decision of the appeal process relates back to the date on which the purported dismissal was effected."

	So that was how they dealt with that case.  If the appeal succeeds and the man is reinstated, then his employment is to be treated as continuous; subject of course to the terms of the contract.  If on the other hand his appeal is unsuccessful then his original dismissal stands.    

	The position is as follows, subject to the terms of the contract.  If a person is reinstated then he is reinstated for all purposes and continues as before and is entitled to count his time while he was suspended - between, in other words, his dismissal and hearing of his appeal -as counting towards his period of employment.  But if he is unsuccessful in his appeal and is not reinstated, then in those circumstances his employment did indeed terminate on the date of his original dismissal.  We ask whether there is anything in this contract which affects the decision and quite clearly there is in the provision which I have read at page 59, if I may just repeat it once.  It is provided quite clearly:

"Termination of employment will not be delayed by an application having been made to the CSAB."

	So there can be no doubt that this dismissal did take place on the 17 January 1990.  There was no question of either man being suspended pending the hearing and the contract continuing pending the hearing, and to describe the appeal as successful is to borrow illegitimately from the language of the two cases to which I have referred.  Those cases were concerned with reinstatement and when the Court of Appeal in the one case, and this Tribunal in the other, spoke of the appeal being successful, they meant successful under the scheme of those employers in those cases; that is to say resulting in reinstatement.  That is what they meant by saying that if the appeal is successful the man is to be treated as not having been dismissed at all.  

	In this case the position is quite different.  In general language it might be said that the appeal to the Appeal Board was successful in the sense that it resulted in a recommendation for re-engagement.  Equally it might be said that it was unsuccessful in the sense that re-engagement, was to include provisions about repayment of money and loss of seniority and so forth.  However that may be, to describe it as successful in the sense in which that word was used by the Court of Appeal in the Sainsbury case and by the Employment Appeal Tribunal in the Howgate case is using language incorrectly, and misleads.  It was not successful in the sense that it resulted either in a recommendation for reinstatement or in reinstatement.  

	On the contrary, it resulted in an offer which on the face of it was very far from favourable.  That offer was not accepted.  These two men applied to the Industrial Tribunal saying that they were unfairly dismissed on the date of that offer and by its very terms were dismissed and although they made certain enquiries about it, it was not in fact glossed or expanded upon by the employer who said "in view of the delay, and in view of the tone of your letters, or the contents of your letters, the offer is withdrawn".

	In those senses the appeal was not successful.  I will not use the word "successful" any more.  What is clear is that it did not result in reinstatement.  There can be no doubt that for all purposes the employment of these men ceased, and they were dismissed, on the 17 January 1990.  Mr England has valiantly sought to persuade us that there is in this connection a distinction between the concepts of employment and contract of employment, and he refers us to what is said in Section 55 of the Act of 1978:

"An employee shall be treated as dismissed by his employer if, but only if - the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice ......."

and then there are two other ways of being dismissed which are referred to in the Section.  He says that does not mean that the employment ends.  The answer to that, it seems to us, is that this is a distinction without a difference in this context.  There can be no doubt that dismissal took place on 17 January.  There can be no doubt that these men might have been reinstated or might have been re-engaged, but neither happened.  When they presented their complaints on the 16 January, they had been dismissed about a year before, and there was no question of the Tribunal having jurisdiction to entertain those complaints.  The suggestion that they were dismissed by the letter offering re-engagement appears to us to be without any foundation.  

	The appeal must fail. We would end by emphasising that it has not been our task as a Tribunal entitled to hear appeals on points of law only to enquire into the merits or de-merits of either side in this matter.  Those might, in other circumstances, have been investigated by the Industrial Tribunal.  They must, we suppose, have been investigated by the Appeal Board and made the subject of recommendations.  We have not seen the recommendations.  We have not seen the report, if there was one, by the Board and for the reasons which we have already gone through the Industrial Tribunal on no occasion adjudicated on the merits of this matter.  

	We have to say, therefore, that simply on the points of law which were advanced before us the appeal against the Industrial Tribunal's decision on the 25 April is dismissed and so also (it must follow) the appeal against the decision of the Tribunal not to review its own decision, which stands or falls on the same basis.