Sainsbury (J) Ltd v Savage

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date31 January 1980
Judgment citation (vLex)[1980] EWCA Civ J0131-5
Date31 January 1980
Docket NumberAppeal No. EAT/644/78

[1980] EWCA Civ J0131-5

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the Employment Appeal Tribunal


Lord Justice Roskill

Lord Justice Brightman

Sir David Cairns

Appeal No. EAT/644/78
J. Salisbury Ltd.

WR M. SPENCER (instructed by Messrs. Bulcraig & Davis) appeared on behalf of the Appellants.

MR A. TABACHLIK (instructed by Herbert Oppenheimer, Nathan & Vandyk) appeared on behalf of the Respondents.


I will ask Lord Justice Brightman to give the first judgment,


This is an employee's appeal from a decision of the Employment Appeal Tribunal given on the 6th October 1978 on a preliminary issue involving a question of jurisdiction. Mr Savage began employment with J. Sainsbury Limited on the 3rd October 1977. On the 21st February,1978, or alternatively the 24th of that month, or alternatively on the 3rd March, he was dismissed instantly for alleged gross misconduct. The first of the three dates was the date when the company say they orally communicated the dismissal to Mr Savage; the second was the date of receipt of a letter of dismissal; the third date is possibly relevant under a provision of the Trade Union & Labour Relations Act 1974. A choice be-tween the three dates is unnecessary because each falls within the twenty six week period which I will refer to later. As a result of his instant dismissal, Mr Savage invoked the domestic appeal procedure available to him under his contract of employment.


I interpose at this stage, namely the 3rd April, 1978, which was the day when the 26 week qualifying period required by the 1974 Act to elapse before the Act is invalid, came to an end.


On the 30th May, an appeal against dismissal was heard by the Deputy Chairman of the company. On the 1st June the Deputy Chairman wrote a letter to Mr Savage stating that his appeal was rejected. In the following month Mr Savage applied to an Industrial Tribunal for a decision that he was unfairly dismissed.


The company resist that claim on two grounds; first, lack of jurisdiction, because the statutory 26 week period of employment had not elapsed; secondly, on the merits, because the dismissal was justified. The matter has been litigated only on the jurisdiction point at this stage.


I will refer briefly to the 1974 Act. Schedule 1, paragraph 4 confers on an employee a right not to be unfairly dismissed. Paragraph 10 contains an exclusion: "Subject to paragraph 11 below, paragraph 4 above 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………" I need not refer to paragraph 11. Paragraph 5, sub-paragraph (5) (b) provides that "the effective date of termination" in relation to an employee whose contractof employment is terminated without notice means "the date on which the termination takes effect", that is to say, the date on which the termination of the contract of employment takes effect.


I must now turn briefly to Mr Savage's contract of employment. His contract included the provisions of the company's "Employees Handbook" as it was called. One section of the Hand book sets out Disciplinary, Summary Appeals and Complaint Procedures. Paragraph 1, under the heading "Disciplinary Procedure", contains a provision for an informal oral warning, a formal written warning and a final written warning.


Paragraph 2, "Dismissals", reads as follows: "Further misconduct or poor work performance after a final written warning will result in dismissal by the Departmental Director acting together with the Senior Manager concerned and the Head Office Personnel Manager". I will not read the rest of that paragraph.


I then go to paragraph 3, "Summary Procedure", Sub-paragraph (l) says: "In cases of gross misconduct or very serious inefficiency the Senior Manager may omit the disciplinary procedure in 1 and 2 above and suspend the employee on full pay pending the decision of the Divisional Director and the Divisional Personnel Manager to dismiss".


Sub-paragraph (2) says: "Cases of gross misconduct include theft or attempted theft, either from the company or from employees; willful neglect of, or damage to, company property, assault or attempted assault on other employ-es, deliberate or grossly negligent contravention of company rules and procedures; grubs insubordination. These may require the company to dismiss the employee concerned instantly both in its own interest and in the interest of its employees".


Paragraph 4 sets out "Complaints and Appeals Procedure." Sub-paragraph. (l), "An individual employee who wishes to appeal against a decision of management or has a complaint concerning work or conditions of employment may do so by first raising the matter with his or her Departmental Manager".


I then go straight to sub-paragraph (3) "If the complaint is not resolved,or the employee wishes to appeal against the application of disciplinary procedures (including the dismissal) he or she can appeal in writing to the Departmental Director — Personnel within 10 working days. The employee can be accompanied at the interview as above",


Sub-paragraph (4), "In the case of an appeal against dismissal or demotion the employee can finally appeal in writing to the appropriate Divisional Director within five working days of the result of the previous appeal".


Sub-paragraph (5) is the clause which we have to construe. "Pending the decision of an appeal to a Director against dismissal, the employee will be suspended without pay, but if reinstated, will receive full back-pay for the period of suspension.


I will say a word about my interpretation of the Appeals Procedure, If dismissed, an employee has ten days in which to appeal to the Departmental Director — Personnel, If his decision is adverse, he has five days within which to appeal to a Director. In the instant case a "leapfrog" procedure was agreed between the parties in that the appeal took place direct to the Deputy Chairman, No point has been taken on this,


The question which arises is apparent from the dates which I have given, The three alternative dates of dismissal...

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