Brown v Southall & Knight
| Jurisdiction | UK Non-devolved |
| Date | 1980 |
| Year | 1980 |
| Court | Employment Appeal Tribunal |
Industrial Relations - Unfair dismissal - “Dismissed” - Effective date of termination of contract - Calculation of period of continuous employment - Summary dismissal by letter posted before 26 weeks continuous employment served - Letter read after 26 week period - Date of termination of employment -
Paragraph 5 of Schedule 1 to the Trade Union and Labour Relations Act 1974 provides:
“(2) … an employee shall be treated for the purposes of this Act as dismissed by his employer, if, but only if, — (a) the contract under which he is employed by the employer is terminated by the employer …”
Paragraph 10 provides that the right to bring a complaint of unfair dismissal:
“does not apply to the dismissal of an employee from any employment if the employee — (a) was not continuously employed for a period of not less than 26 weeks ending with the effective date of termination …”
On February 8, 1978, the employee began full-time employment with a firm of solicitors. On July 20, 1978, after he had left work that day to begin a holiday, the employers sent a letter to his home address stating that he was summarily dismissed and they did not wish him to return to the office. The letter was awaiting him when he returned from holiday. His period of continuous employment with the employers, calculated from February 8, 1978, was less than 26 weeks as at the date the dismissal letter would have been delivered at his home address but not less as at the date when he returned from holiday and read the letter.
On his complaint of unfair dismissal he contended that his dismissal amounted to a repudiation of contract and so was not effective until he accepted the repudiation; and that, therefore, the dismissal did not take effect before the actual receipt of the letter. The industrial tribunal rejected his contention and held that the dismissal took effect on the arrival of the letter and, accordingly, his right of complaint was barred under paragraph 10 of Schedule 1 to the Trade Union and Labour Relations Act 1974.
On appeal by the employee: —
Held, allowing the appeal, (1) that, by virtue of paragraph 5 (2) (a) of Schedule 1 to the Trade Union and Labour Relations Act 1974, an employee was dismissed if his contract of employment was terminated; that an employer was entitled to terminate the contract unilaterally and, therefore, he could dismiss the employee by express notice, whether or not the employee acquiesced in the dismissal (post, pp. 625B–C, 626A–C).
(2) That, however, the summary dismissal of an employee by letter did not take effect until the employee read the letter or had a reasonable opportunity of reading it; that, therefore, the employee had established 26 weeks of continuous employment on the date of termination of the employment; and that, since the industrial tribunal had jurisdiction to hear the employee's complaint, the case would be remitted for a hearing of the complaint on its merits (post, pp. 628A–B).
The following cases are referred to in the judgment.
Decro-Wall International S.A. v. Practitioners in Marketing Ltd. [
Dedman v. British Building & Engineering Appliances Ltd. [
Denmark Productions Ltd. v. Boscobel Productions Ltd. [
Fox Maintenance Ltd. v. Jackson [
Heyman v. Darwins Ltd. [
Hill v. C.A. Parsons & Co. Ltd. [
Hounslow London Borough Council v. Twickenham Garden Developments Ltd. [
Howard v. Pickford Tool Co. Ltd. [
I.P.C. Business Press Ltd. v. Gray [
Layton v. Shires [
McDonald v. South Cambridgeshire Rural District Council [
Marshall (Thomas) (Exports) Ltd. v. Guinle [
Ridge v. Baldwin [
Sanders v. Ernest A. Neale Ltd. [
Vine v. National Dock Labour Board [
Western Excavating (E.C.C.) Ltd. v. Sharp [
White and Carter (Councils) Ltd. v. McGregor [
No additional cases were cited in argument.
Appeal from an industrial tribunal sitting at London (Central).
The employee, Irving Brown, appealed from a decision of the industrial tribunal on January 5, 1979, that he had not been employed by the employers, Southall & Knight, a firm of solicitors, for a period of 26 weeks and, accordingly, under paragraph 10 of Schedule 1 to the Trade Union and Labour Relations Act 1974, the industrial tribunal had no jurisdiction to hear his complaint of unfair dismissal.
The grounds of appeal were, inter alia, that the industrial tribunal were not correct in law in stating that a notice of dismissal took effect from the date when it was given and not the date when it was received; and they misdirected themselves in stating that an employee had no option but to accept a notice terminating his contract of employment.
The facts are stated in the judgment.
The employee appeared in person.
Julian Malins for the employers.
Slynn J. delivered the following judgment of the appeal tribunal. The employee made an application to an industrial tribunal claiming that he had been unfairly dismissed by Southall & Knight, who are a firm of solicitors and by whom he had been employed. The point was taken that he could not make such a claim because he had not been continuously employed for a period of not less than 26 weeks ending with the effective date of termination of his employment. It was said that accordingly he had no rights by virtue of paragraph 10 of Schedule 1 to the Trade Union and Labour Relations Act 1974. That matter was dealt with by way of a preliminary point before the industrial tribunal. There were a number of issues of fact and law which the industrial tribunal had to decide. At the end of the day, they concluded that the employee did not have the necessary 26 weeks of continuous employment and so they had no jurisdiction to hear his claim. He now appeals against that decision.
The industrial tribunal found that the employee had been employed by another firm of solicitors as the manager of their litigation department until January 13, 1978. He was no at that stage an admitted solicitor. They also found that he had an interview with Mr. Knight of the respondent firm n November and December 1977 and they came to an understanding that the employee would begin full-time employment in February 1978. He was in fact paid from February 8 in respect of his full-time employment with the firm. He contended, however, that his period of continuous employment began in mid-December 1977. The basis of that case, the industrial tribunal said, was that the employee had arranged with Mr. Knight that the employee would bring over a number of his current files; he would cause the clients of his previous employers to be billed with work which he had done in respect of those cases up to that time but, thereafter, his new employers would become the solicitors in respect of those cases. the employee says that he was to keep the cases running until he began his full-time employment on February 8. It was his case that, after his daily full-time work with the previous firm was over, he did some work on these cases at the premises, and used the facilities, of the respondent firm. The industrial tribunal heard evidence, however, that the files of the respondent firm (the correspondence files, as it transpires) bore no trace of work done before February 8, 1978.
Another matter upon which the industrial tribunal heard evidence went to the termination of the agreement. It appears that the employee was entitled to three weeks' holiday and he gave evidence that he intended to take this holiday from Friday, July 21 until Friday, August 11, 1978. The office chart, however, which was produced at the hearing, showed that his holiday had been entered up as beginning on Monday, July 24 and ending on Monday, August 14. The employee said that he had no recollection of this chart but he said that he had told one of his colleagues, who it appears was a secretary in the firm, that he wanted to begin and end on the Friday. He was told that that was all right. The industrial tribunal had reservations about his evidence on this matter but they were quite satisfied that if he did intend to take his holiday from Friday to Friday he had not properly told the partners in the respondent firm of his...
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Gisda Cyf v Barratt
...on 30 November. Judgments below and the cases 13 The tribunals below followed the general approach laid down by the EAT (Slynn J) in Brown v. Southall & Knight [1980] ICR 617 and re-iterated by the EAT (Morison J) in McMaster v. Manchester Airport plc [1998] IRLR 112. That approach is that ......
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Newcastle Upon Tyne NHS Foundation Trust v Sandi Haywood
...contract and "effective date of termination" (a statutory construct, according to Gisda Cyf) interchangeably. For example, in Brown v. Southall and Knight [1980] ICR 617, (a case about whether an employee had sufficient continuous employment to present an unfair dismissal complaint) it was......
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Newcastle Upon Tyne NHS Foundation Trust v Sandi Haywood
...that written notice does not take effect until the employee has read it or had a reasonable opportunity of doing so. 22 In Brown v Southall & Knight [1980] ICR 617, the issue was whether the employee had the 26 weeks' continuous employment, ending with “the effective date of termination”, t......
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Gisda Cyf v Barratt
...and radical ground was contained in counsel's second argument. It was to the effect that earlier decisions of the EAT (such as Brown v Southall & Knight [1980] IRLR 130 EAT and McMaster v Manchester Airport plc [1998] IRLR 112 EAT), which suggested that the effective date of termination w......