Appeal No. EAT/190/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 April 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MRS T A MARSLAND
MR P A L PARKER CBE

ENESCO EUROPEAN GIFTWARE GROUP LTD	APPELLANT

MRS K P BIRKETT	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MISS SARAH MOOR
(of Counsel)
Instructed by:
Messrs Burnetts
Solicitors
6 Victoria Place
Carlisle CA1 1ES	

MR JUSTICE LINDSAY (PRESIDENT)

1	We have before us as a preliminary hearing the appeal of Enesco European Giftware Group Ltd in a matter between Mrs K P Birkett and the company.  Today, Miss Sarah Moor has appeared for the Appellant, Enesco. 

2	Mrs Birkett lodged her IT1 on 12 June 2000.  The Notice of Appeal raises a very short point and it is this: was the Employment Tribunal in error in regarding Mrs Birkett’s effective date of termination as 19 May 2000, which is what they did.  If the “EDT” was any date earlier than 12 March 2000, her claim was out of time, and, as it seems on the facts, time could not be extended under the “not reasonably practicable” provisions of section 111(2)(b).  

3	The appeal requires a review of some authorities, and, in particular, construction of the company’s letter of 3 March 2000, not received by Mrs Birkett until 4 March or 6 March.  That letter includes the sentence:
“Therefore, your last day of employment with the company will be Friday 3 March 2000”

That date had passed before Mrs Birkett got the letter.  

4	It is arguable, on balance - and this is a matter on which two views are very much possible - that for the purposes of section 97, and hence for the purposes of section 111(2)(b), the EDT was therefore 3 March - see section 98(1)(b).  It is to be noted that section 97 subsection 2 does not apply to section 111.  

5	Moreover, on 7 March the company wrote a second letter, which said inter alia:
“we therefore ……. terminated your employment from Friday 3rd March.”
But how far is it right to take such individual sentences out, without regard to the provisions of the letters as a whole, which may lead to a contrary conclusion than that to which those sentences alone might lead to?  The Tribunal said in their paragraph 6:
“6  It was our decision that the terms of the letters were in effect indistinguishable in these two cases when we compared them.  Accordingly it was our conclusion that the correct construction of the applicant’s letter of termination dated 3 March 2000 was that her employment did not come to an end until 11 weeks after that date.”
That is 11 weeks after 3 March.

6	In the face of the letters, although we have doubts between ourselves on the subject, we do think it is arguable that there was an error of law and we therefore direct the matter to go to a full hearing.  It is to be listed as likely to take an hour and a half; we put it in Category B, and we make the standard provisions as to exchange of witness statements.