Barras v Hamilton
| Jurisdiction | England & Wales |
| Judgment Date | 18 October 2004 |
| Date | 18 October 2004 |
| Court | Special Commissioners (UK) |
special commissioners decision
Dr John F Avery Jones
The Appellant in person
Akash Nawbatt, counsel, instructed by the Solicitor of Inland Revenue for the Respondents
EMPLOYMENT INCOME - termination of employment - whether with immediate effect or employee given 3 months notice requiring garden leave - garden leave - appeal dismissedHEARING IN PRIVATE - reasons stated
1. Redundant Employee appeals against an amendment to her self-assessment for 2001-02. The Appellant appeared in person; Mr Akash Nawbatt appeared for the Inspector.
2. The Appellant applied in advance for a hearing in private giving the following reasons: that the Inspector had no objection; that there is no important public interest; for the protection her private tax affairs, particularly that future employers might carry out checks using online sources possibly resulting in her being branded as an undesirable employee; she would be intimidated as an appellant in person by the presence of the public; and that the confidentiality of her former employer was at risk. Regulation 15 of the Special Commissioners (Jurisdiction and Procedure) Regulations 1994 provides:
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15. (1) Subject to the following paragraphs of this regulation, hearings before a Tribunal shall be in public.
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(2) A Tribunal may direct that all or part of a hearing shall be in private-
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(a) upon the application of all the parties by notice to the Clerk;
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(b) upon the application of any party by notice to the Clerk;
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(c) of its own motion,
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in each case, a Tribunal is satisfied that a hearing in private is necessary-
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(i) in the interests of morals, public order, national security, juveniles or for the protection of the private life of the party; or
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(ii) it considers that publicity would prejudice the interests of justice.
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(3) Before determining an application under paragraph (2)(b), or giving a direction under paragraph (2)(c), a Tribunal shall give all other parties to the proceedings an opportunity to make representations.
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(4) Before giving a direction under paragraph (2) that the entire hearing be in private, a Tribunal shall consider whether only part of the hearing should be heard in private…".
I record that I considered that the test in paragraph (2) was satisfied solely for the last reason put forward by the Appellant. I was aware at the time that this was a case arising out of the termination of her employment and I thought it possible that matters relating to her former employer might come out without their having the possibility of answering them, publicity for which would be contrary to the interests of justice, and that it would be difficult to have part of the hearing in private when this was the central issue. In fact, nothing was said at the hearing to which her former employer could object. The other reasons put forward would not have persuaded me to agree to a hearing in private. That the other party agrees is relevant but not decisive; while I agree that no public interest in involved that is not a consideration laid down in Regulation 15; the figures are not relevant and so publicity about her private tax affairs is not in point; if future employers made checks using online sources I do not see any objection to their knowing that she had been involved in a tax appeal; and while I can understand that the presence of others in the Tribunal may be intimidating, there can always be persons connected to the other party present (in fact there were two members of the Solicitor's Office and two Inland Revenue officers present).
3. The Appellant gave evidence. I find the following facts.
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(2) On 9 February 2001 the Appellant was offered employment with Employer Group plc (but on Employer Limited notepaper) initially as Programme Manager and then as Vice-President reporting directly to the managing director. She started work in March 2001. The offer letter refers to a confidentiality agreement attached that it was a condition of employment that she sign.
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(3) On 24 September 2001 she found that her access key did not work and she could not access her emails. She was summoned to a meeting mid-morning and told that she was being made redundant with immediate effect. She was handed a letter (the termination letter) in the following terms (I have added the paragraph numbers for ease of subsequent reference).
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(2) We are writing to confirm our decision to terminate your employment with Employer Ltd ("the Company") with effect from today.
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(3) Your will receive your normal salary (including car allowance where appropriate) up to and including today together with any days accrued holiday entitlement not taken to date, less statutory deductions e.g. for tax and national Insurance contributions.
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(4) Under the terms of your contract you are entitled to 3 months contractual notice. During your notice period, you will not be required to attend the office, however you should ensure that you are available for work if required. Your pay in lieu of notice will be paid through the payroll in the normal manner on 25th of month.
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(5) Any outstanding loan made to you by the Company shall be repaid to the Company and all sums due will be deducted from the above payment.
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(6) You will continue to be covered under the Company's Private Medical Insurance Scheme, Life Assurance, and the Company's Pension Scheme until 23rd December 2001. The pension fund administrators will contact you directly detailing your options under the rules of the scheme.
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(7) If you have use of a company car, this should be returned to the company by 23rd December 2001. Please contact [name] before this date to confirm the necessary arrangements.
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(8) Please ensure that your swipe card or security pass, together with any company property (including for example but not limited to mobile telephone, laptop, documents, records and copies thereof, company credit card etc.) are returned to Human Resources by today. May we remind you of your continuing duty of confidentiality, which will remain under the terms of your contract, after your employment has terminated.
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(9) If you are a member of either of the Company Share Purchase Schemes, you are advised to contact the Administrator on [telephone number] in order for them to send details of your SAYE & ESOP benefit entitlement and the options available to you. If you have entitlements under the Company Stock Plan, you would have the right to exercise these options within six months of your leaving date. In order to exercise these options, you would be advised to contact [name].
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(10) On behalf of the Company, I would like to thank you for your past services and contribution to the Company, and wish you every success for the future....
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(3)
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She told the Company that she would be consulting her lawyers. She did so, and then returned the termination letter signed by her a few days later.
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(4)
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A letter to her from the Company subsequently confirmed that termination of her employment was "by reason of compulsory redundancy due to a cost cutting exercise and subsequent restructure of the organisation."
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(5)
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She was entitled to three months notice in accordance with her letter of engagement dated 9 February 2001.
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(6)
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She was paid her basic pay and car allowance for October to December 2001 subject to deductions of tax and National Insurance.
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(7)
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The staff handbook, which is incorporated by reference in her letter of engagement included the following in relation to notice: "If for any reason, including business confidentiality, the Company considers that it is not appropriate for you to continue in your normal role during some or all of the notice period, the Company may at its discretion reassign you to other duties or...
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Barras v Hamilton
...148Income and Corporation Taxes Act 1988, s. 148. This was an appeal by the taxpayer against a decision of a Special Commissioner ((2004) Sp C 440) that her contract of employment ended on 23 December 2001 at the end of a three month notice period so that she was not entitled to a tax-free ......
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A
...when it did not have an opportunity to answer those allegations. The appellant referred us to (Redundant Employee v McNally (HMIT) SCD(2004) Sp C 440) where it was directed by the Special Commissioner that the hearing should be in private on similar grounds. While we were invited by the app......