[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mehra v Marlborough Road Primary [2006] UKEAT 0374_06_2112 (21 December 2006) URL: http://www.bailii.org/uk/cases/UKEAT/2006/0374_06_2112.html Cite as: [2006] UKEAT 374_6_2112, [2006] UKEAT 0374_06_2112

[New search] [Printable RTF version] [Help]

APPEARANCES

 

For the Appellant	Mr Declan O'Dempsey (of Counsel) Instructed by: City of London Citizens Advice Bureau 32 Ludgate Hill London EC1V 2RL
For the Respondent	Mr J D Middleton (Solicitor) Messrs Cobbetts LLP Ship Canal House King Street Manchester M2 4WB


 


Summary

Unfair dismissal – Dismissal/ambiguous resignation

The Claimant was told she was to be dismissed at a disciplinary hearing. The letter confirming that decision stated that "you are due to be summarily dismissed." The EAT held that the letter was a summary dismissal. Pragmatically the ET could have allowed the matter to proceed by allowing an ET1 to be filed out of time. It would have been helpful if the ET had indicated its view as to the merits of the case if the dismissal was found to be unfair.


 


HIS HONOUR JUDGE PUGSLEY

1. This is a case in which the Employment Tribunal commenced the hearing on 20 June 2005. The decision was promulgated on 16 May 2006. The hearing lasted over 25 days and the decision runs to some 52 pages. There were some 77 allegations of race discrimination and victimisation. The sole issue of this appeal was whether the Tribunal was correct in its decision that it had no jurisdiction to hear the claimant's action for unfair dismissal. The claimant's case on race discrimination and victimisation was comprehensively considered and rejected in a detailed and careful decision. The sole ground of appeal is whether the Tribunal was correct in deciding that it had no jurisdiction to hear the claim for unfair dismissal.
2. The factual background may be briefly narrated. The Claimant had worked as a qualified teacher since 1992. In the summer of 2002 she was appointed as an extra teacher with the First Respondent. She had prior experience as a supply teacher and she was regarded as the ideal candidate. The decision of the tribunal chronicles the unhappy saga in her brief career. The Claimant kept falling out with colleagues; at the conclusion of its decision the Tribunal state that the Claimant's behaviour caused the problem.
3. On 7 April 2004 the Claimant issued proceedings claiming race discrimination. In May 2004 the First Respondent initiated disciplinary proceedings against the Claimant. There was a disciplinary hearing on 9 July and the claimant was informed of its conclusions by a letter dated 12 July.

"Local Disciplinary Procedure

We write further to the interview you attended with the governors on Friday 9 July in which you were accompanied by Mr. Emery. Also in attendance were Mrs. Elderkin, Head teacher and Mrs. Linden, Principal Personnel Officer.

At the hearing you were given the opportunity to answer the following allegations of Gross Misconduct:-

That there has been a severe breakdown of trust and confidence in you.

I) Undertaking activities whilst off work on sick leave.

2) Your possession and labelling of certain resource materials.

3) Making false allegations against the staff of the school in respect of property and their actions towards you.

4) Making damaging statements about the school and its staff.

At the hearing Governors considered evidence was presented by Mrs. Elderkin, witnesses and Mr. Emery on your behalf and conclude follows:-

1) The first allegation we concluded that although you did undertake a driving test whilst off sick we could not dispute the medical evidence presented.

2) The second allegation we found proven by the evidence submitted from the three letters from the schools who declared they did not give you permission to take these resources. Also evidence was presented of you altering the ownership of books belonging, to Marlborough Road.

3) We found allegation 3 proven by the evidence presented by the witnesses.

4) Similarly we found the fourth allegation proven by the witnesses presented.

I confirm the decision given to you at this hearing that as the allegations have been proven you are due to be summarily dismissed from your employment.

I must inform you that you have the right of appeal against this decision. If you wish to exercise this right, you must notify me in writing within 7 days of receiving this letter."

4. The Employment Tribunal made various findings concerning the letter which are set out at Paragraphs 87 onwards. The Tribunal decided that this letter was not a letter of dismissal since it did not comply with the well recognised rule that there must be a specific date upon which the contract was to be terminated, or at least, a date which can be determined from the other material. It is true that the letter is not a work of refined legal drafting and the reference to you are due to be summarily dismissed from your employment is unfortunate.
5. We have been referred to various authorities as to the construction which should be placed on the words of dismissal but we have come to the robust view that this letter admits of only one conclusion: that the claimant was summarily dismissed at the hearing and this letter merely confirms this. The letter was only confirmation of what the claimant had already been told at the meeting. Objectively construed the letter was telling the Claimant she had been dismissed at the meeting. It is not unknown in civil proceedings for advocates and judges to refer in rather disparaging terms to what are dismissively called jury points as though the simple point, bereft of legal sophistication, is always an over simplification. The tribunal itself referred to the disciplinary meeting as making the decision to dismiss (see Para 76) and that was a wholly accurate description of what had happened at the meeting. The letter confirming that decision states that the claimant has a right of appeal against that decision. The disciplinary panel had decided to dismiss, they confirmed that decision in writing and when her appeal was dismissed the letter informing her of that referred to upholding the decision. This was a summary dismissal with immediate effect. The procedure required the governors to instruct the director of education to dismiss the claimant but the reality was that only the governors had the power to dismiss. It may seem somewhat unusual to continue to pay the claimant until her appeal was dismissed but in the experience of one of the members this practice is not unknown in other areas of employment.
6. The Tribunal found that the ET 1 had been submitted on 3 August prior to the confirmation that her appeal had been dismissed by a letter of 6 October and therefore it had no jurisdiction. This decision was careful, considered and well drafted. To make criticisms of what in the context of the whole decision was a peripheral, rather than a central consideration seems, somewhat churlish but we do consider that we should make some general observations which might be of some help to Chairmen and members of employment tribunals. Those who sit in this tribunal are well aware of the great difficulties that beset the Chairman and members of a tribunal. Points that receive only the most cursory reference at the hearing often move centre stage at the appellate stage; decisions are tooth combed for minor inconsistencies. There are few judgments of any court which cannot with hindsight have been better expressed. A tribunal, unlike a court, often has to determine issues which go to jurisdiction which involve matters of high technicality. It is ironic that tribunals which were intended to avoid legalism operate in a manner which is far too technical.
7. There was a simple pragmatic solution to the problem of jurisdiction which was to allow the claimant to have filed a further ET1 and to allow it to proceed notwithstanding the expiry of the time limits. We cannot conceive of any possible injustice that would have arisen had this course been followed. Section 111(3) confers jurisdiction where a complaint is made before the effective date of termination. Further we view with concern the approach that because a tribunal has no jurisdiction it cannot, or should not, indicate its view of the merits of the case. In this case the tribunal indicated that it would do so but decided against it. This case must have cost many thousands of pounds and hours and hours of the Chairman's time. We are not presuming to say what the tribunal's findings as to unfair dismissal should be but in view of the findings it has already made about the claimant's attitude it is highly likely that in any event any compensation the claimant might receive is likely to be severely limited. Judges regularly assess damages in a case in which the claimant has lost on liability. The logic of this is that if the decision on liability is reversed the court has made findings as to quantum and time and money is saved.
8. In this case we allow the appeal in that we consider the application to the tribunal was not premature. She was summarily dismissed and we allow the appeal. However we consider it is vital that the unfair dismissal be heard by the same tribunal. They have spent over a working month hearing this case and it would be a wicked waste of money for another tribunal to have to retread the same ground. We make no secret of taking the cost of this matter into consideration. The legal system does not operate in a self contained world in which its cost are to be dismissed as a vulgar irrelevance. We have no doubt from the terms of the decision that the tribunal would approach the matter in a professional way. But it is more than economy that leads to the decision that this should be remitted to the same tribunal. It would be unjust to litigants if a successful party to an appeal could then be allowed to challenge findings of facts made by the original tribunal by the simple expedient of the case being considered by an alternative tribunal.