Appeal No. UKEAT/0034/07/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 June 2007

Before
HIS HONOUR PETER CLARK
(SITTING ALONE)

MR D ELLIS	APPELLANT

MINISTRY OF DEFENCE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS E BANTON
(of Counsel)
Instructed by:
KSB Law LLP
Elan House
5-11 Fetter Lane
London EC4A 1QDB 	
For the Respondent	MR J HYAM
(of Counsel)
Instructed by:
The Treasury Solicitor
Litigation & Employment Group– 4A
One Kemble Street
London WC2B 4TS	

SUMMARY

Unfair Dismissal – Constructive dismissal
Nature of Appellant’s pleaded claim (constructive unfair dismissal) misunderstood as claim for breach of contract.  Appeal allowed;  case remitted for hearing.

HIS HONOUR JUDGE PETER CLARK
1.	This case has taken a curious turn.  Dealing first with the history, the Claimant, Mr Ellis, commenced employment with the Respondent, the Ministry of Defence, on 15 December 1998.  He unhappily experienced ill-health; and on 6 September 2005 a decision was made to retire him on ill-health grounds, the termination of employment taking place on 8 November 2005.  There were internal proceedings within the Respondent and indeed a determination by the Cabinet Office Civil Service Pensions Divisions.  Finally, he lodged an application at the Employment Tribunal at Stratford on 27 April 2006.  

2.	Pausing there, the ordinary three-month limitation period expired on 7 February 2006.  At that stage Mr Ellis represented himself and he completed the form ET1.  At paragraph 5 the form states this:
“Unfair dismissal or constructive dismissal
Please fill in this section only if you believe you are being unfairly or constructively dismissed.”
 and then this rubric, 
“If you were dismissed by your employer you should explain why you think your dismissal was unfair.  If you resign because of something your employer did or failed to do which made you feel you could no longer continue to work for them (constructive dismissal) you should explain what happened.”  

3.	Comment has been made in the past on the wording of the standard form ET1, which the Government insists all litigants must now complete in order to bring a claim before the Employment Tribunal.  This case is perhaps another example of the difficulty encountered by litigants in person when faced with this question.  Mr Ellis filled in that section.  Therefore, on the face of it, he contended that he had been unfairly dismissed or constructively dismissed.  Of course, unfair dismissal covers both actual and constructive dismissal:  and those who design these forms may care to undertake basic instruction in employment law.
4.	Mr Ellis said:
“I was not dismissed.  I was sick (cancer) and I was told that I would receive a 5 year enhanced pension.  I went into remission and returned to work.  My request for retirement on sickness grounds which I applied for on the assumption that I would be in receipt of an enhanced pension of five years was accepted.  After I took early retirement I was told that a mistake had been made and that I would only be in receipt of 56 days enhanced pension.  I asked for my job back and the MOD refused even though I had returned to work and my work was exemplary.” 

At paragraph 5.5 of the form he says “I want my previous job back! from which I agreed to leave under false pretence”.

5.	That claim form was processed at the Stratford Employment Tribunal office and given the code B0C, that is a claim for breach of contract.  The claim form was served on the Respondent in the usual way and in its Grounds of Resistance at paragraph 1 the Respondent says “This claim has been accepted as a claim for breach of contract as the Claimant accepts that he was not dismissed”;  and then goes on to take a point on limitation under the Extension of Jurisdiction Order 1994.  

6.	The matter came on for hearing at a pre-hearing review before Mr S M Duncan sitting alone at Stratford on 7 August 2006.  Mr Ellis appeared in person.  Mr Hyam appeared on behalf of the Respondent as he does today.  The judgment promulgated on 31 August dismissed the claim.  And at paragraph 1 of the Reasons the Chairman says this:

“1	The Claimant, Mr Ellis, was employed by the Ministry of Defence from 15 December 1998 until 8 November 2005 when Mr Ellis retired on medical grounds.  On 27 April 2006 Mr Ellis presented a Claim to the Tribunal and filled in Section 5 of the claim form ‘unfair dismissal or constructive dismissal’.  Under this heading Mr Ellis made it clear however that he had not, in fact, been dismissed and his Claim can be better categorised as one of breach of contract.  Indeed when the Respondents put in their Response on 25 May 2006 they pleaded their resistance to the Claim as so categorised.  In their Response the Respondents took the point that the Claim had been presented out of time and that time should not be extended and it is that particular issue that the Tribunal is dealing with at this time.”

The Chairman went on to deal with that issue and found that the claim was out of time and dismissed it. 
 
7.	The Claimant then appealed against that decision, the matter coming before Mr Justice Langstaff at a hearing under Rule 3(10) of the EAT Rules.  The learned judge allowed the matter to proceed to a full hearing to consider two issues;  first, whether there was a claim for unfair dismissal based on the contention that Mr Ellis was effectively obliged by his employer to resign for reasons of his ill health and that therefore it was not a voluntary decision  upon his part, and secondly, if it was a breach of contract claim, independent of a claim of unfair dismissal, Regulation 7 of the Jurisdiction Order in any event also provides an extension period.  The issue for the full Tribunal is whether the Employment Tribunal should have used as a starting point that period.  

8.	Today Mr Ellis is represented by Miss Banton of Counsel.  Her case is that this was not a breach of contract claim and the Claimant has no interest in pursuing such a claim:  accordingly, the second part of the remit from Mr Justice Langstaff does not in practice arise.

9.	As to the question of unfair dismissal, Mr Hyam in the course of argument has adopted the argument that the Claimant is now at any rate seeking to resurrect, if it was ever there in the first place, a claim of unfair dismissal which was abandoned before the Employment Tribunal.  He submits that that is therefore a new point which under the general rule (see Jones v Governing Body of Burdett Coutts School [1998] IRLR 521) ought not to be permitted on appeal. 

10.	Having heard Counsel it seems to me that the issue comes down to this, either Mr Hyam is right, in which case the appeal fails;  or Miss Banton  is right, in which case the only course, as Mr Hyam accepts, is for the matter to be remitted for rehearing by the Employment Tribunal.  
11.	Having considered the matter, I prefer the submissions of Miss Banton.  It seems to me that the Claimant on the face of his form ET1 was raising a claim of constructive dismissal.  Although he is a layman when he says ‘he was not dismissed’ that may well mean that he was not actually dismissed.  Parliament in its infinite wisdom has passed the Dispute Resolution Regulations, drawing a distinction between a ‘constructive dismissal’, which requires certain steps to be taken under the statutory grievance procedure, and, an ‘actual dismissal’, where steps must be taken first by the employer under the Dismissal and Disciplinary procedure provided for in the 2004 Act.  It seems to me that the administration at Stratford mislabelled this claim as a breach of contract claim.  That mislabelling was taken up by the Respondent in their grounds of resistance;  and when the matter came before the Chairman, and I have inquired of Mr Hyam, who was there, how it was dealt with, it seems to me that the Chairman took the Claimant at his word when he said he was not dismissed as ruling out any claim of unfair dismissal.  That in my judgment was a misunderstanding of the Claimant’s case.  In those circumstances it seems to me that the Chairman was wrong to proceed on the basis of a breach of contract claim only.  Accordingly in my view the right course is to allow this appeal and to remit the claim of unfair dismissal to a fresh Tribunal for consideration.  As a preliminary step it may well be that a further pre-hearing review will be necessary to decide whether the claim discloses any reasonable prospect of success in showing that there was a dismissal.  It may then be that issues arise as to whether or not the Claimant engaged with the statutory grievance procedure Step 1 so as to activate the three month extension of time to be found in Regulation 15 of the 2004 Dispute Regulations.