Soufiane Amajane v Metroline Travel Limited

This is an appeal from a judgment of the Watford Employment Tribunal which was sent to the parties on 30 September 2021. The judgment concluded that the Tribunal did not have jurisdiction to consider the appellant’s unfair dismissal claim as he had ceased to be employed before the date on which the respondent had purported to dismiss him.

The Tribunal also dismissed his wrongful dismissal claim on the basis that the claim did not arise nor was it outstanding at the date the appellant’s employment terminated. The respondent’s pleaded case was that it had dismissed the appellant, it had not sought to argue that the appellant’s employment had terminated at any earlier date. The point was one raised by the Employment Judge himself and was determined without hearing any oral evidence on the point specifically.

The appellant says that the Employment Judge erred in law. The respondent’s formal position is that the appeal is not opposed. There had been some efforts made to agree a consent order but that foundered after Deputy High Court Judge Mathew Gullick, KC identified difficulties with the wording of the draft produced by the parties.

Mr Amajane appeared before me in person. He produced a very helpful skeleton argument. The respondent did not appear.

The appellant formerly worked for the respondent as a bus driver. The Tribunal found that on 11 January 2020 the appellant had first an interaction and then on the 12January an altercation with a bus controller when the latter asked him to remove the hoodie that he was wearing whilst driving. On 15 January 2020, the claimant decided to resign. The Tribunal found, and the parties agree, that to do so in accordance with clause 12.2 of his contract of employment the appellant was required to give one week’s notice in writing.

The appellant sent a letter to the garage manager saying:

“I would like to inform you that I am leaving and resigning from my position as a bus operator/driver because of personal reasons. I would like to receive any outstanding payment for my holidays and seven lieu days. The uniform badge, locker keys no. 175, a photocard, a bus pass, bus engine starter keys, it has been handed to the counter”.

The letter does not say in terms that notice is being given. At first blush the letter might be read in two ways: either as an attempt to terminate his employment with immediate effect and asking to be paid in lieu, or the giving one week’s notice of termination in accordance with the contract. In his amended grounds of appeal, the appellant suggests a third possibility; that the letter was: “An invitation to agree a termination date on the claimant’s resignation”. In his skeleton argument and before me, the appellant says: “In my resignation of 15 January 2020 I clearly stated a one-week notice”. Whilst I do not think it can be said that the letter does clearly state that one week’s notice is being given, the significance of the submission is that the appellant’s position on appeal is that he was intending to give notice of termination. That position accords with the Employment Judge’s determination that the appellant’s letter should be treated as giving one week’s notice.

The next development is that on 17 January 2020, the respondent sent a letter to the appellant inviting him to a rescheduled disciplinary meeting on 22 January 2020. In that letter the respondent said:

“On 16 January 2020, I was informed of your notice of resignation which you submitted on 15 January by email to Mr Leroy Webley. You noted the reasons for resignation as ‘Personal reasons’. Whilst your resignation has been accepted, you are contractually obliged to work a period of two weeks”.

The Tribunal found, and the parties agree, that the suggestion that the appellant was obliged to give two weeks’ notice of termination was incorrect. However, what is clear is that the respondent’s position at the material time was that the claimant could not lawfully terminate the contract until 29 January 2020. It follows that, notwithstanding that the letter talks of the proferred resignation having been accepted, the respondent was in reality declining to accept termination on one week’s notice but offering instead to accept resignation on two weeks’ notice. As a matter of Law, the respondent’s mistaken understanding is irrelevant. The respondent could not refuse to accept a lawful termination on notice by the appellant.

The Employment Judge’s conclusion was as follows:

“The respondent accepted the claimant’s resignation on 17 January. The respondent is wrong when it says the claimant had to give two weeks’ notice of termination. He had to give one week. His contractual notice period expired on 22 January 2020, some five days before the appellant’s disciplinary hearing”.

It is that group of findings that is the subject of the present appeal. The appellant’s arguments depend on factual developments that post-date the letter of 17 January 2020, so it is necessary first to set out what happened next.

On 22 January 2020, the date fixed for the disciplinary hearing, the appellant telephoned the respondent. The appellant asked why he was being invited to attend the scheduled disciplinary hearing when he had resigned. The appellant then said both that he thought the disciplinary hearing should not go ahead, but also that he needed time to find a union representative. At the appellant’s request, the disciplinary hearing was rescheduled to 27 January 2020. It seems, therefore, that the appellant had resolved to participate in the disciplinary proceedings. That is what then happened.

What is the significance of the appellant’s agreement to participate in the disciplinary hearing? The appellant says that he was to be understood to be agreeing that he would remain in employment until the disciplinary hearing process was complete. The respondent’s position at the time was that the employment continued. The Employment Judge reached a different view: the employment terminated on 22 January 2020.

The possibility that there was an express agreement to defer termination is not canvassed in the Employment Judge’s reasoning. The Employment Judge’s decision is simply that the appellant’s employment terminated by means of resignation on 22 January 2020. To complete the chronology, the disciplinary hearing was conducted on 27 January 2020. The respondent purported summarily to dismiss the appellant. The following day the appellant wrote to the respondent purporting to withdraw his resignation and seeking to appeal his dismissal. On 29 January 2020, the respondent wrote confirming the summary dismissal.

Was there an error of law in the Tribunal’s approach? It is open to the parties to a contract to agree that a notice of termination may be withdrawn. However, that must happen before the contract terminates (see Harris & Russell Limited v Slingsby [1973] ICR 454 NIRC). It is equally open to the parties to agree that a period of notice should be extended. On the same principle that underpins Harris, that must happen before the employment is otherwise terminated. 22 January 2020 was the last day of the appellant’s notice period. If his contention that by agreeing to participate in the disciplinary hearing he agreed to postpone his resignation is to suceed, the agreement would have had to have been reached before the expiry of the notice that he had given.

I turn now to the specific grounds of appeal. In Ground 1 the appellant says that the Tribunal erred in law in determining that he was not an employee at 27 January 2020 and/or that the decision is perverse. The grounds rely on three main matters in support. First, it is said, on the respondent’s own evidence, prior to the dismissal the respondent rejected a chance for the appellant’s employment to terminate earlier than 27 or 29 January 2020 and insisted that he stay longer and take part in the disciplinary hearing at which he was dismissed. I do not think that point is a good one. It was not open to the respondent to insist that the appellant remain in employment beyond 22 January 2020. It is true that that is what the respondent said should happen, but it was a matter for the appellant whether he agreed to postpone his resignation.

The second matter relied on is that the appellant was still acting in a manner which was consistent with the continued subsistence of his contract of employment after 22 January 2020, including, specifically, engaging with the respondent’s disciplinary process. I do not think this point assists either. If the employment terminated on 22 January 2020, it would not matter what was done thereafter. What matters is what, if anything, was agreed on 22 January 2020.

The third matter relied on is that the letter dated 15 January 2020 was never taken by anyone as being a resignation with immediate effect. I pause to say that that is true, but the Tribunal did not treat it as a resignation with immediate effect. The ground is further developed as follows. The letter was treated as an invitation to agree a termination date on the claimant’s resignation and by words and/or deed that agreed termination date was 29 January 2020. That is not a sustainable argument. The first part is not sustainable because the appellant has been very clear with me that he intended to give a week’s notice and not to open a negotiation about the termination date. The second part is not sustainable because the respondent says the appellant was dismissed on 27 January and not 29 January 2020.

However, there is embedded in this ground a suggestion that there is an agreement that the appellant’s employment should extend beyond 22 January 2020 and that is a point developed more directly in the second ground, to which I now turn.

Ground 2 is that the Employment Tribunal erred in law by concluding that because the respondent was wrong when it said the appellant had to give two weeks’ notice of termination, the appellant was not employed on 27 January 2020 and/or that the decision is perverse.

In considering this ground, the first point made on the appellant’s behalf is that the appellant did not specify in his resignation letter how long his notice period would be. That point falls away given the appellant’s case before me has been that he gave one week’s notice. The second point relied upon is that it was open to the parties to alter the agreement that one week’s notice was required. It is said that this was altered by the respondent’s letter dated 17 January 2020 and the appellant’s acceptance by continuing with the contract of employment until 27 January 2020 when he was summarily dismissed.

This I consider is a point of much greater force. The claimant’s agreement on 22 January 2020 to participate in the disciplinary hearing very strongly suggests that he was agreeing that his resignation would be deferred. As I observed in setting out the background, there is no indication on the face of the judgment that this was a possibility that the Employment Judge specifically considered. The call on 22 January 2020 does not feature in the list of factors he sets out as having formed the basis of his conclusion.

I conclude that the Tribunal did err in failing to consider whether or not an agreement to defer the resignation taking effect was reached on 22 January 2020. The Tribunal failed to take into account a relevant matter: the appellant’s agreement on that date to submit to a disciplinary process that he asserted was inconsistent with his resignation.

The Third Ground is that the Employment Tribunal erred in determining the matter without hearing any live evidence about the relevant surrounding circumstances. The grounds of appeal say correctly that the point about whether the appellant was still employed at the date of his purported dismissal arose only at the hearing and thus that the statements prepared for the witnesses did not deal with the question directly. It is said that the Tribunal’s conclusion from reading all the statements that “It appeared that the core factual matters relevant to the issue of jurisdiction did not appear to be in dispute”, is, in consequence, unsafe.

I have not had sight of the statements and have, therefore, been unable to form any view as to whether the Employment Judge’s view is a reasonable one. However, it is clear from the judgment that the parties were asked whether there was any objection to the Employment Judge considering the point that he had identified. There was no objection. Both parties were represented, the appellant by counsel. Had they considered that further evidence was required, it was incumbent on the representatives to say so. I do not consider that the Employment Judge can be criticised for proceeding as he did.

The Employment Tribunal erred in law by failing specifically to consider whether, on 22 January 2020, the appellant reached an agreement with the respondent that his resignation would be postponed pending determination of the disciplinary process. I have considered whether the matter is so clear as to permit me to decide the issue myself. Whilst I consider the argument for an agreement to extend employment beyond 22 January 2020 is a strong one, I have not had the benefit of hearing the very evidence that ground 3 of the appeal suggests would be essential to determine the issue properly. For that reason, I am remitting the case to the Tribunal to determine the issue and in the event that the point is determined in the appellant’s favour, to hear the substantive claims.

The appellant asks me to remit to a differently-constituted Tribunal, that is, to a different Employment Judge. I do not think that there is any reason to do so.