Appeal No.	 EAT/854/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 February 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR L D COWAN
MR G H WRIGHT MBE

MOSTYN HOUSE SCHOOL	APPELLANTS

MR D STOVELL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR R BRADLEY
(of Counsel)
Messrs Berrymans Lace Mawer
Solicitors
Castle Chambers
43 Castle Street
Liverpool L2 9SU	
For the Respondent	MR S GORTON
(of Counsel)
Messrs Guy Williams Quiggin
Solicitors
1 Union Court
Cook Street
Liverpool L2 4SJ	

	JUDGE PETER CLARK:     This is an appeal by the employer, Mostyn House School, against a decision of a Chairman sitting alone at the Liverpool Industrial Tribunal on 18 March 1997 that the complaint of unfair dismissal brought by the Respondent employee, Mr Stovell, was not time-barred.  Extended reasons for that decision are dated 19 May 1997.

	The Respondent commenced employment on 15 April 1994.  He was the school’s Deputy Headmaster.  On 9 July 1996, the last day of the summer term, he was seen by the Headmaster, Mr Grenfell, and the Chairman of the Governors, Mr Holt.  Only the Respondent gave evidence before the Chairman and his evidence as to the conversation which took place on that occasion was accepted.  The Chairman found that the Respondent was told that he was to be dismissed by reason of redundancy; that he would be paid his salary until 31 December 1996, his redundancy payment and any other monies due to him.

	The Respondent asked whether he would be working in September and was told “no, we think it would be better if you did not come in and work through term, that might be upsetting for the children”.

	On 15 July 1996 Mr Grenfell wrote to the Appellant in these terms, so far as is material:

“Dear David
I am writing to you on behalf of the Governors, to record on paper the very sad news given to you verbally last Tuesday, that your employment here at Mostyn House has been terminated as from the 31st August 1996, because of redundancy.  
I also confirm that you will, immediately after that date, receive a term’s salary which is being paid to you in lieu of notice, and also the redundancy payment that is due to you.”

	On 10 January 1997 the Respondent presented his complaint of unfair dismissal to the Industrial Tribunal.  He gave, as the effective date of termination (EDT) of his employment 31 December 1996.  In the particulars of his complaint attached to the form IT1 he gave this account of the meeting held on 9 July 1996:

“I was told that I would cease work from 31 August 1996 and would be paid the appropriate amount of redundancy money for my period of employment and one term’s salary in lieu of a term’s notice.”

	He added:

“Later I received a letter confirming my redundancy.”

	That was a reference to the letter of 15 July.  

	Pausing there, it seems to us that the Respondent’s pleaded account of the conversation on 9 July is entirely consistent with the letter, and points clearly to an EDT of 31 August, with pay in lieu of notice.  There is no suggestion that the terms of the letter differed from the 9 July conversation.  

	However, the Respondent’s account and evidence was materially different.  As the Chairman found, there was a radical difference between the terms of the letter and the Respondent’s account of the 9 July meeting.  On that account, the Respondent was given his contractual entitlement of one term’s notice to expire on 31 December.  The letter pointed to an EDT of 31 August, with one term’s pay in lieu of notice.  

	Based on his acceptance of the Respondent’s evidence the Chairman found that the Respondent reasonably believed that the letter merely confirmed his understanding of the conversation on 9 July.  Although not specifically referred to in the reasons, he appears to have applied the approach of the Employment Appeal Tribunal in Leech v Preston Borough Council [1985] ICR 192 in concluding that the EDT was 31 December 1996 and the application was therefore made in time.  

	Alternatively, if he was wrong about that, the Chairman would have extended time under the reasonable practicability escape clause in Section 111(2)(b) of the Employment Rights Act 1996 in the light of the ambiguity which he found the Appellant had created in the mind of the Respondent.

	In this appeal Mr Bradley attacks both findings by the Chairman.  As to the EDT he makes two submissions.  First that the Chairman’s finding that the Respondent reasonably believed that the letter of 15 July was no more than a confirmation of the conversation on 9 July, with the effect which the Chairman found was to give him contractual entitlement to the term’s notice but releasing him from his obligation to turn in, was a perverse finding.

	He contends that the letter was, as the Chairman found, clear and unequivocal.  It terminated the employment on 31 August with one term’s pay in lieu of notice.  

	We think that that submission fails on the basis of the application of the principle in Leech, that is, that the letter must be read in the context of the conversation on 9 July.

	Secondly, he argues that if he is wrong on the first point, then there was a change of position by the employer during the period of notice; the employer brought forward the EDT to 31 August by the letter of 15 July.  In this connection he relies upon Robert Cort & Son Ltd v Charman [1981] ICR 816 and Stapp v The Shaftesbury Society [1982] IRLR 326, both following the Court of Appeal decision in Dedman v British Building & Engineering Appliances Ltd [1974] ICR 53.  

	In our judgment those are quite different cases.  In Cort the employee was dismissed by letter only; there was no oral termination.  It was a summary dismissal with pay in lieu of notice, as was the case in Dedman.  In Stapp the employee was dismissed on notice.  During the course of working out his notice he was clearly and unequivocally summarily dismissed for a different reason.

	In the instant case, so the Chairman found, at the end of 9 July meeting, the Respondent was given his contractual entitlement of one term’s notice, but excused attendance at work.  That meant an EDT of 31 December 1996.  

	The letter of 15 July, set against that background, was capable of being consistent with that position.

	On the facts as found, this case falls to be decided in accordance with Leech and the earlier cases of Adams v GKN Sankey Ltd [1980] IRLR 416 and Chapman v Letheby & Christopher Ltd [1981] IRLR 440.  

	In these circumstances we see no grounds for interfering with the Chairman’s finding as to the EDT.

	However, like the Chairman, we go on to consider his alternative finding that it was not reasonably practicable to present the complaint within time.  

	That does not simply mean physical impracticability.  We remind ourselves of the Court of Appeal’s guidance in Palmer v Southend-On-Sea Borough Council [1984] ICR 372.  The question of reasonable practicability is essentially one of fact for the Industrial Tribunal.  The factors to be taken into account can be many and varied.  Among the questions which would be relevant for an Industrial Tribunal to investigate, so May LJ opined, giving the judgment of the Court in Palmer (385 D), is “whether there has been any misrepresentation by the employer on any relevant matter”.  Here, although not deliberate, on the Chairman’s findings of fact the Appellant created the impression in the Respondent’s mind at the meeting on 9 July that his employment would terminate on 31 December 1996; they did not correct or alter that impression by their letter, expressed to be confirmatory at the meeting.  It is in precisely such circumstances that an Industrial Tribunal is entitled to exercise its discretion in favour of allowing the case to proceed to a hearing on its merits, notwithstanding that the complaint was presented outside the primary limitation period.

	For all these reasons we have concluded that there are no proper grounds in law for interfering with the Chairman’s decision and accordingly this appeal is dismissed.

	Leave to appeal refused.