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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> McElroy v. Fredericks Dairies Ltd [2001] UKEAT 1032_00_0202 (2 February 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1032_00_0202.html Cite as: [2001] UKEAT 1032__202, [2001] UKEAT 1032_00_0202

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APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR RECORDER UNDERHILL QC:

1. The appellant worked for the respondents as an engineer. On 5th October 1999 he was called to the office of the Chief Engineer and told that he was dismissed. He was given one month's pay in lieu of notice. The tribunal treated the 5th October 1999 as the effective date of termination.
2. The appellant brought unfair dismissal proceedings and by a decision sent to the parties on 6th July 2000, his dismissal was held to be unfair and he was awarded a compensatory award of £12,000 on the basis that this represented the applicable maximum.
3. With effect from 25th October 1999 the maximum compensatory award was increased to £50,000 in respect of all dismissals in which the effective date of termination was on or after that date.
4. By this appeal the appellant complains that the tribunal were wrong to take his effective date of termination as 5th October 1999. He says that he was entitled to a month's notice and that accordingly his effective date of termination should be 5th November 1999, in which case he would benefit from the lifting of the statutory maximum.
5. We are sorry to have to say that, in our view, this argument is unarguably wrong in law. It is well settled that in the typical case where an employee is dismissed with immediate effect, even though the dismissal is in breach of contract because no or short notice is given, nevertheless the effective date of termination is the date that the dismissal is communicated.
6. We have explored briefly with the appellant, who appears in person, the factual circumstances of his dismissal, and we are entirely satisfied that there is no point open to him that the tribunal either misdirected itself or reached a decision which was not open to it on the facts.
7. However, that is not necessarily the end of the matter. In its decision in the case of Robert Cort & Sons Ltd v Charman [1981] ICR 816 this tribunal while confirming that the law as to effective date of termination is as we have just summarised it, observed that a dismissal without notice constitutes a breach of contract, even though wages may be given in lieu, and that the measure of damages in a common law action for wrongful dismissal might include the loss of the right to claim for unfair dismissal which the employee would have had if the correct notice had been given. That was a case in which the shortness of the notice deprived the applicant of the necessary minimum period of continuous service, but the principle would on the face of it apply equally in cases like the present where the shortness of the notice deprived the appellant of the benefit of the benefit of the increase in the statutory maximum. At the time that that case was decided the tribunal did not have jurisdiction to determine breach of contract claims. That, however, is no longer the position. Under the Employment Tribunals (Extension of Jurisdiction) Order 1994 the tribunal has jurisdiction in relation to such claims up to a maximum amount of £25,000.
8. It seems to us at least arguable that the tribunal should have considered whether, notwithstanding that it could not award the appellant more than £12,000 by way of compensation for unfair dismissal, it could by the exercise of its breach of contract jurisdiction, have awarded him damages for the loss of the right to claim a larger amount. There may well be difficulties about this way of putting the case. We have not had the opportunity to look at it in any depth. We say no more than that it appears to us to be arguable. A particular difficulty may be that it is unquestionably a new point and this tribunal has strict rules about the circumstances in which new points may be taken. But we cannot say that it is unarguable that the point is not available to be taken in the Employment Appeal Tribunal and we therefore allow this claim to proceed on this basis.
9. The appellant will need to amend his Notice of Appeal to substitute the new ground which we have held to be arguable for the old ground which we have held to be unarguable. We do not think it is reasonable to expect him to do so until he has had a copy of this judgment and has had the opportunity to take advice on it. We therefore direct, firstly, that the transcribing of this judgment be expedited and, secondly, that amended grounds of appeal be lodged within 42 days of the date of despatch from this tribunal of the judgment. We have urged the appellant to take legal advice because the point is not a straightforward one. We have suggested that his first port of call be the Citizens Advice Bureau but that they should assist him in applying to a specialist source of legal advice if, as we anticipate, he will not wish to incur the expense of instructing solicitors. The obvious port of call would be the Bar Pro Bono Unit, of which the CAB will no doubt have contact details.
10. We would regard this as an appropriate case for Category B and we would estimate the time for the hearing as 3 hours. For the avoidance of doubt, it does not appear to us that this is a case where the Chairman's Notes will be of any assistance. It is clear that this point was not argued below and there will have been no relevant evidence.