Appeal No. EAT/491/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 16 November 1994

	Before

	THE HONOURABLE MR JUSTICE HOLLAND

	MISS C HOLROYD

	MR G H WRIGHT MBE

DOWNSEND SCHOOL LTD	APPELLANTS

MISS K L HAWTIN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR R NG
(OF COUNSEL)
The Legal Protection Group
Limited
32-42 High Street
Purley
Surrey CR8 2PP

For the Respondent	MR B CARR
(OF COUNSEL)
The Legal Department
Association of Teachers and
Lecturers
7 Northumberland Street
London WC2N 5DA

	MR JUSTICE HOLLAND:  This is an Appeal by Downsend School Ltd as employers from a decision of an Industrial Tribunal of 12 April 1994 that was held at London South.  That decision related to an issue deemed to be preliminary to an unfair dismissal claim brought by Miss Kim Louise Hawtin against the Appellant.  The issue was as to whether she had been continuously employed by them for two years, and so as to have the right to bring the claim for unfair dismissal.

	Her case to the Tribunal was that she had been employed by the Appellant from the 1 January 1994 to 31 December 1992, that is for two years.  The employer's original case was that she had been only employed by them from 8 January 1991 to 12 October 1992, that is for significantly less than two years.  In the event, the Industrial Tribunal made two findings.  First, unanimously, the Tribunal found that the commencement of the relevant employment was on 1 January 1991 and against that finding, there is no Appeal.  By a majority, they found that the employment was terminated on 31 December 1992.  In the result, they found for the Applicant and the present Respondent on the preliminary issue.  The Appeal we are concerned with is an Appeal against that majority decision as to the date of termination.  Turning to the facts, the Applicant is a teacher by profession, and the Respondent (the present Appellant) conducted a girls preparatory school.  Miss Hawtin's employment with that school commenced on the basis of a standard form of contract dated 29 January 1991 and which includes sofar as material as paragraph 13 "Termination of Employment";

		"(1)		The Teacher's employment hereunder shall terminate immediately in the event of the Teacher's dismissal for misconduct or other good and urgent cause.

		(2)		Subject to Sub-Clause 13(1) a notice by either party to terminate this Contract shall be given to expire on 31st December, 30th April or 31st August in any year, provided that if the Teacher is taking up a teaching appointment with another employer at the commencement of a Summer or Autumn term such notice shall be deemed to take effect on the day immediately preceding the day on which the school under the new employer opens for such term if this be earlier than 1st May or 1st September respectively."

	By 1992, the Appellant, whether justifiably or not, was becoming disenchanted with Miss Hawtin.  It is plain that she and the headmistress, Mrs Dorothy Harvey, did not see eye to eye over her performance of her duties.  In the result, a letter was written, plainly to take advantage of paragraph 13, Subsection 2, dated 5 August and so far as material, it read as follows, emanating from Mrs Harvey;

		"Dear Kim,

		The survival of schools like Downsend Lodge depends on reputation, results and a staff who are totally committed to the ethos and aims of the school.

		Our meeting two weeks ago, gave me great cause for concern, as this is now the second interview I have had with you when you have expressed opinions that do not agree with the organisation of the school.  This being so must mean that you are not gaining job satisfaction and from the school's point of view, staff morale and the atmosphere is bound to be affected if there is anyone who views the requirements of the job in a negative way.

		The fact that your ideas have not changed during the time between our two discussions confirms that you do not wish to alter and I feel, therefore, that it would be better for all concerned if your appointment at Downsend Lodge ceased at the end of the Autumn Term, 1992.

		I am sorry to have to make this decision, as you have talents to offer and I sincerely hope that you find an appointment which meets your philosophies and maybe one that is physically closer to home.

		I shall be happy to give you a reference and trust that you will, during your last term, ensure that the children's welfare and education are given a higher priority..."

	It is manifest on the evidence before the Tribunal that the matter did not rest there.  The Tribunal received evidence from Miss Hawtin and from Mrs Harvey.  Both in the course of their evidence, referred to involvement by Miss Hawtin's Union.

	On 5 October, Miss Hawtin took a week off work through ill health.  It would seem that whilst away and on an unspecified date, a decision was reached by the directors of the Appellant Company to dismiss her summarily.  In the result and on their instructions, Mrs. Harvey had a further letter prepared.  This letter is dated 12 October 1992 and reads as follows:

		"WITHOUT PREJUDICE

		Dear Kim,

		The request made by AMMA has now been discussed by the Board of Directors and I have been asked to act on their behalf and inform you of the Board's decision.

		As your views do not conform to the aims and ethos of Downsend Lodge, it is inappropriate for you to continue your employment as of today, 12th October, 1992.  This date will therefore be regarded as your effective date of termination.

		The school recognises its obligation to pay you until 31st December, 1992 and an up front payment, in lieu of notice, tax free and without National Insurance deductions, amounting to £4204.16, has been agreed by the Board.  This, together with salary to date of £511.34 (net) amounts to £4715.50, for which is enclosed.

		This letter is confirmation of our conversation of 12th October 1992.

		Yours sincerely,

		Dorothy Harvey."

	The 12 October 1992 was a Monday.  On that day, Miss Hawtin returned to work and there was a meeting between her and Mrs. Harvey.  The findings of the Tribunal as to what happened at the meeting are short and as follows :

		"20.		The Applicant was absent from work due to sick leave the week preceding 12 October 1992.  She returned to work on Monday 12 October 1992.  Upon her return to work that day, she had a meeting with Mrs Harvey.  Mrs Harvey expressed concern about the Applicant's health, and said that she thought it better if the Applicant did not work for the remainder of the term.

		21.		At the end of the meeting on 12 October 1992, Mrs. Harvey handed a letter to the Applicant..."

	And that letter was the letter of 12 October already recited in this Judgment.

	Some more light is thrown upon this important meeting by the notes of evidence, albeit that such notes are unhappily perhaps more telegraphic than is usual.  The evidence of Miss Hawtin so far as is relevant is as follows:

		"Mrs Harvey expressed concern at my health and thought it better if I didn't work for rest of term.  I can't recall anything being said about date of termination.

		I received this letter (A17) at end of meeting...  I was asked to leave because Mrs Harvey was concerned about my health...

		CROSS EXAMINATION
		QUESTION

			She told you that your employment should be terminated at the end of that day?

		REPLY

			Severance pay being negotiated to leave.  Was negotiating settlement.  Dismissed on that day.  I cleared my room.  I was told not to speak to children or staff.,  Other than letter acknowledging receipt of cheque.  Pay in lieu to 31 December gross."

	The evidence of Mrs Harvey as similarly noted, recites that she had taken advice from the Board of Directors, that she had been told that she had to ask Miss Hawtin to leave and then, coming to the meeting:

		"I asked her to come to my room.  Went to my room.  Directors had decided in interest of school to collect her things together to leave.  I handed her the letter.  She telephoned her union afterwards.  I told her not to say goodbye to the children because they had been disrupted enough...."

	So much for the essential facts bearing upon this matter, save for one other matter that was before the Tribunal and is before us.

	On 16 October, a letter was sent out to the parents of Downsend Lodge by Mrs Harvey which letter is plainly one sent out towards the end of a half-term, inasmuch as it deals with ongoing developments.  It does, however, include this passage:

		"....However, we do have a change in the staff teaching commitments as from Monday, 19th October.  Miss Hawtin was due to leave Downsend Lodge at Christmas but for personal reasons we have agreed to release her now.  Fortunately we will not be employing any new staff, so although adjustments to the timetable will be implemented, the disruption for the girls will be minimal..."

	Turning to the approach of this Tribunal, we remind ourselves first of Section 55 (4) Employment Protection (Consolidation) Act 1978 which so far as material reads as follows:

		"In this Part "the effective date of termination"

		(a)	in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which that notice expires;

		(b)	in relation to an employee whose contract of employment is terminated without notice, means the date on which termination takes effect."

	The initial question as we see it, is as to how matters were "resolved" between Miss Hawtin and Mrs Harvey representing the employers, on 12 October, that is by what means they were so resolved.  There are as it seems to us three possible options.  First, it is arguable that they were resolved orally with the letter being merely confirmatory as it purported to be, that is with the letter having no more than an evidential effect, evidencing what had happened at the meeting.  Second, it is feasible to argue that the matter was resolved solely by way of the letter.  Thirdly, it is feasible to argue that it was resolved part orally and part by means of the letter.  That then being the three options we have considered, we have turned to the evidence as to the meeting.  As to this, it is common ground that the meeting included oral representations by Mrs Harvey.  It also included the handing over of that prepared letter as part of the proceedings of the meeting itself.

	Turning then back to the options, it seems plain to this Tribunal that matters were not resolved on that day purely orally, with the letter being no more evidential.  Further, it seems to this Tribunal that matters were not resolved on that day purely by way of the letter, but that we are concerned with a situation in which the matters were dealt with partly orally and partly in writing.  It thus becomes vital to construe the letter, ensuring that such construction is contra proferentum that is, against the author and in favour insofar as it is possible of Miss Hawtin.  It is necessary to construe the letter as being part of the dismissal process, but is also essential to take such construction in conjunction with what was said and putting all that together answer the essential question, did the employers evince an intention to terminate the contract at once, wages being paid in lieu of notice? or did they evince an intention only to terminate the contract at a future date, that is 31 December 1992?  Our findings are first, making every alliance in terms of construction in favour of Miss Hawtin and against the employers, the letter made it entirely plain that the dismissal was immediate.  It did so in terms that can have left no doubt whatsoever in her mind, nor in the mind of any reasonable employee receiving such a letter.  In particular, we focus upon the critical sentence:

		"...This date will therefore be regarded as your effective date of termination..."

	Turning then to the evidence available to us as to the conversation, we can find nothing in that evidence, whether it is evidence as to what preceded the handing over of the letter, evidence as to what accompanied the handing over of the letter or evidence as to what followed the handing over of the letter, that could in any way serve to detract from the contents of the letter.  It would indeed have been remarkable if Mrs Harvey having started the meeting with the letter and with the clear objective of dismissing Miss Hawtin in accordance with the terms of the letter, should somehow obscure or detract from the task in hand.  Had she done so, it could only have been in terms that must have been memorable to both parties to the conversation.  For example:

		"Here is a letter, but pay no attention to it; the answer is that I am standing you down."

	We put the matter in those extreme terms, simply to expose the point that must follow from the fact that this was a letter that was handed over actually in the meeting itself.

	In taking that view, we do take notice (albeit with great caution having regard to the quality of the notes), to what Miss Hawtin seemed to concede in evidence, but that, however, has not weighed heavily with us.  What has weighed heavily with us is the content of the letter and the use of the letter as an adjunct to the meeting itself.

	We acknowledge that there is in these situations, a potential for conflict between the oral communication and a document coming into existence subsequently, purportedly confirming the content of the oral conversation.  That situation is exemplified in Leech v. Preston Borough Council [1985] ICR 192.  That is not the situation that we have here.  Here, we have the situation not where there was one occasion upon which there was oral dismissal and another occasion upon which there was a confirmatory letter transmitted.  Here, the two things are together; it is as though in Leech's situation, the disciplinary meeting included the handing over of that letter.

	It is only fair for us to turn finally, to the reasons which weighed with the majority of the Tribunal, as set out at page 10 in our Bundle.  There appear to be three in number.  The first is and we quote:

		"...In the view of the majority an ordinary reasonable employee would understand by the letter dated 12 October, read as a whole, that they were dismissed on 31 December 1992, but not required to report for work after 12 October 1992..."

	Dealing with their point, as is apparent from what has been said already in this Judgment, this Tribunal is unable to place the same construction upon the letter.  The second reason is:

		"...In arriving at this decision the majority bear in mind all of the surrounding circumstances, and particularly the fact that the Applicant had already received a letter of dismissal dated 5 August 1992, which stated that she was dismissed at the end of the Autumn...."

	As to this, the inference for this Tribunal is precisely the opposite.  Given that there was one state of affairs arrived at on 5 August, we are now looking at some different and developing state of affairs.  The third reason is:

		"...It is the view of the majority that the letter to the parents dated 16 October 1992, more closely reflects the meeting held on 12 October 1992."

	Had one had any confidence that the letter to the parents could provide evidence as to what was said at the meeting, whether or not what was said at the meeting detracted from the reputation of Miss Hawtin, then a letter to the parents may have had evidential value, but what is plain to this Tribunal is that the letter to the parents was aimed, if anything, at ameliorate the position of the Applicant, that is, presenting it in the light most favourable to her, for the benefit of her present and continuing reputation.  Let it be tested, what one asks oneself rhetorically were the prospects of the letter to the parents asserting, if such were the case, that she had been dismissed because she did not subscribe to the aims and ethos of the school, or for that matter, that she had been dismissed because of ill health?  Neither text could reasonably be expected to feature in that letter and given that, it is manifest that its evidential value is minimal, and it is not in any way something that has weighed with this Tribunal.  For these reasons, therefore, we allow the Appeal of the Appellants and set aside the finding of the Tribunal in favour of Miss Hawtin on this preliminary issue.

	We consequently find that the effective date of termination for the purposes of Section 55(4) is 12 October 1992.