Brash-Hall v Getty Images Ltd

Mrs Brash-Hall, the Appellant, was employed by the Respondent in a responsible position. In 2002 she became pregnant. From 13 February 2003 she exercised her right to maternity leave. The vacancy so arising was filled by a newly recruited employee on a temporary basis. In June 2003 the Respondent represented to the Appellant that, due to a restructuring of the organisation, her former job would cease to exist. She was offered a different job in the new organisation, or a severance package. She refused to accept either, contending that her former job was merely being relabelled. On 8 August 2003, about a week before she would otherwise have returned to work after her maternity leave, she resigned, and contended that she had been constructively dismissed, wrongfully and unfairly dismissed, and also the subject of sex discrimination. On her eventual proceedings before the Employment Tribunal, all of these contentions on her part were upheld.

In October 2003, however, the Respondent did undertake a restructuring which the Employment Tribunal accepted as being genuine, with effect from 1 November 2003. The Respondent’s position was that, if she had returned to work in August, she would have been offered a job in the new organisation, which she would not have accepted. That would have had the result that her loss of earnings would have come to an end at that stage, even if it had not done so earlier.

The Appellant argued against that as a permissible approach on the facts, before the Employment Tribunal. The Respondent suggested that it was one possible result. The Employment Tribunal held, as a finding of fact, that she would have been offered a particular job, and that she would not have accepted it. It did not go on to consider what, if any, severance package would have been offered to her in that event. Instead, it considered whether she would have been entitled to a statutory redundancy payment in that case, and held that the job she would have been offered would have been suitable alternative employment, and that she would therefore not have been entitled to a statutory redundancy payment.

The Appellant appealed unsuccessfully, representing herself, to the Employment Appeal Tribunal against the finding that she was not entitled to a severance package such as the Respondent had offered her. With permission granted by Hooper LJ she appeals further to this court, where she has the benefit of representation as she had before the Employment Tribunal.

The issue is whether the Employment Tribunal was wrong in law not to include in the award which it made to the Appellant, at the conclusion of the remedy hearing, the severance package which she asserted would have been offered to her on her becoming redundant, hypothetically, on 1 November 2003, regardless of whether she would have been entitled to a statutory redundancy payment. The Respondent relies, among other things, on the way the case was put before the Employment Tribunal. It is therefore necessary to consider the matter in some detail.

The Appellant issued her application to the Employment Tribunal on 6 November 2003. The case came to a hearing on liability on 9 and 10 March 2004. The Tribunal gave its extended reasons on 13 April 2004 holding that the Appellant succeeded on unfair dismissal, on direct discrimination under the Sex Discrimination Act 1975, and on wrongful dismissal. The case was set down for a remedy hearing on 7 May 2004 and directions were given with a view to that hearing. In particular the Appellant was directed to file and serve a schedule of loss by 30 April 2004. In fact the remedy hearing took place on 10 and 11 June 2004 and the Tribunal invited further submissions in writing after the hearing on a particular point. The decision was sent to the parties on 23 July 2004.

The Appellant’s case was that she would have returned to work earlier but for the Respondent’s conduct, in June 2003, and that she would have remained in employment through the restructuring in the autumn of 2003 and would still have been employed by the Respondent at the date of the hearing. She therefore claimed loss from June 2003 up to the date of the hearing and a sum on account of future loss of earnings. That loss of earnings was put forward on alternative bases according to what job she would have had after the restructuring in the autumn of 2003 and whether she would have had an increase in her remuneration. The Respondent contended that she would not have returned to work so early and that she would have been made redundant in the autumn in any event. The Employment Tribunal held that she would have returned to work on 18 August, would have continued in work with the Respondent until the end of October and would then have left because she would have refused to accept the alternative job offered to her under the restructuring carried out at that stage. Her contract was subject to three months’ notice. The remedy awarded gave her compensation in respect of loss of one week’s maternity pay and benefits, for the week of 8 August, and compensation for the loss of pay and benefits for three months from 18 August, and in addition an award for injury to her feelings. That therefore proceeds on the basis that she would have had three months’ notice as of 18 August.

It is unnecessary to consider the details of the Appellant’s originating application and the particulars given of it. The Respondent’s grounds of resistance, however, do include passages to which I must refer. In paragraph 11 reference was made to a letter of 25 June 2003 from Mr Tribe, Vice President Human Resources, to the Appellant. This was the letter that suggested that there was about to be a restructuring which the Employment Tribunal held was not genuine. The letter offered three options for the Appellant. One was to apply for a new post of Head of Sales Development, the second was to take a role as Sales/Market Development Manager and the third was “that the applicant take redundancy with significantly enhanced severance terms in line with the Respondent’s redundancy policy”. In turn paragraph 18 alleged the later reorganisation and said that she would have been made redundant at that stage in any event. The Appellant sought particulars of various allegations, including of the redundancy terms that would have been offered to her if she had been made redundant in the later reorganisation. The answer was as follows:-

The redundancy guidelines set out principles applying to situations in which employees of the Respondent face redundancy. A distinction is drawn between employees for whom the Respondent has been unable to offer suitable alternative employment and those to whom it has offered suitable alternative employment but who have chosen to decline that employment on the basis of minor variations to the contract. In the latter case the principle is that the employee will receive payment for the contractual notice period plus any statutory redundancy payment due. In the former case the principle is said to be that suitable compensation should be provided to the employee to carry the employee over a typical job search period and to recognise to a degree long service with the Respondent. A number of elements would go to make up the package. For present purposes what matters is the separation pay. In the case of someone such as the Appellant who, as I understand it, would count as a non-senior manager with between two and five years of service the separation pay would be three months’ remuneration. The clear implication is that that is in addition to the pay due as a matter of contractual notice. The guidelines conclude with the sentence:

On 14 October 2003, Mr Tribe wrote again to the Appellant describing the current reorganisation. Under that restructuring a post was available which was described as a new position, Sales Director National Account Management. So far as this post was concerned it was made clear that the Respondent did not consider that the Appellant was well suited to that role so that, although it would have considered an application from her, there was a clear indication that she was not likely to be appointed to it. There was, however, a role of National Account Manager which had some similarities to her previous post, which was available to her and which was described in the letter. The further option, if she did not wish to be considered for that position, was to take redundancy. This was described in identical terms to the passage which I have quoted from the letter dated 25 June 2003.

Returning then to the proceedings before the Employment Tribunal, in compliance with the Tribunal’s directions the Appellant filed and served a schedule of loss. This was put forward on two alternative bases, first that she would have applied for and would have taken the role of Sales Director National Account Management, and the second that she would have been appointed to the position of National Account Manager. She claimed loss up to 7 May 2004, the anticipated date of the hearing, and future loss of earnings up to 2007. Later, shortly before the eventual hearing in June, a revised schedule of loss was put forward on her behalf which included a further option, namely on the basis that she would have continued employment with the Respondent at no increase in her remuneration. It also took into account a number of other matters that had happened or come to light including that she was due to commence alternative employment with effect from 28 June 2004. None of these formulations included any element reflecting the proposition that she would have been made redundant on 1 November 2003 and that in that event she would have received a severance package. That was inconsistent with her case.

Mr Craig, then as before us acting for the Appellant, put forward a written skeleton argument dated 8 June 2004 on the question of remedy. At paragraph 14 of that document, under the heading Losses, reference was made to the schedule of loss. The skeleton argument continued as follows:

In the Respondent’s written closing submissions dated 11 June, Mr Sutton submitted at paragraph 4.4 that the Appellant would not have accepted the offer of the post of National Account Manager with effect from November 2003. That section of the submissions ends with this sub-paragraph:

After the hearing on 10 and 11 June, both Counsel submitted further written documents dealing principally with the question of stock options, a point that the Tribunal had to consider but which has not been in issue on the appeal. Mr Craig’s document dated 24 June 2004 included a paragraph 6 headed Redundancy. The submissions in this paragraph were aimed at persuading the Tribunal not to find that the Appellant would have been made redundant as at 1 November 2003, but rather that she had lost at least a substantial chance of continued employment by the Respondent after that date. The Respondent’s solicitors submitted a responsive document on 7 July 2004 in which, under the heading Redundancy, they referred to paragraph 6 of Mr Craig’s further submission. They objected that this was not a topic for submission at that stage and that submissions had not been invited on that point by the Tribunal at or after the hearing. Nevertheless the document went on to urge that the Tribunal ought not to accept that the Appellant would have continued in the Respondent’s employment after 1 November 2003 but that she would have rejected the role of National Account Manager and that there were no other suitable alternative positions for her and “she would have been dismissed as redundant in any event by 1 November 2003”.

The Employment Tribunal dealt with this issue in the latter part of paragraph 28 of its decision as follows:

On the Appellant’s behalf, Mr Craig submits that this passage is wrong in law because the question which the Tribunal ought to have considered, on the basis (contrary to his submissions below) that they found that she would have been made redundant, was what offer would have been made to her, not whether she would have been entitled to a payment under the statutory provisions. He submits that the offer that would have been made to her is plain from the terms of the two letters in June and October 2003 and from the particulars given of the Respondent’s grounds of resistance and the redundancy guidelines. He submits that, if she did not take up the post of National Account Manager, she would have taken the option of voluntary redundancy and that the package available to her would have been that outlined in the letters of 25 June and 14 October, namely her three months’ contractual entitlement to pay in lieu of notice and in addition a further three months’ severance pay. Accordingly, he submits, the compensation awarded by the Tribunal was inadequate because, instead of covering the period up to 17 November, it should have proceeded on the basis that on 31 October she would have become entitled not only to pay and benefits for the following three months but also to an additional three months’ pay and benefits, on a tax free basis, pursuant to the terms of the severance package.

On the Appellant’s appeal to the Employment Appeal Tribunal, where as I have said she represented herself, the EAT dealt with this issue in paragraphs 13 and 14 as follows:

The Appellant’s case on this appeal is simple. As held in Ministry of Defence v. Cannock [1994] ICR 918, compensation for the tort of sex discrimination, which had been established against the Respondent at the liability hearing, is to be assessed so as to put the Appellant into the position in which she would have been if the Respondent had not acted unlawfully by constructively dismissing her. As held by the Employment Tribunal at the remedy hearing, that position would have been that she would have remained employed by the Respondent until the end of October 2003 and would then have been made redundant on terms identified in the letter of 14 October 2003, consistently with the letter of 25 June 2003 and as reiterated in the particulars of the Respondent’s case. She would therefore been entitled to full pay and benefits up to 31 October 2003 during her employment and would then have become entitled to the severance package, which was stated as being offered to her. The compensation in fact assessed by the Employment Tribunal does not even give her three months’ pay in lieu of notice as of 1 November 2003 but only three months’ pay in lieu of notice from 18 August 2003.

The severance package would have included two elements: three months’ pay in any event, which she was entitled to in lieu of notice, and an additional three months’ pay as identified in the redundancy guidelines to which I have referred. Of course the Appellant’s case had been that she should have been entitled to a great deal more on the basis that she would have remained employed by the Respondent after 1 November 2003, but on the basis of the Employment Tribunal’s findings, Mr Craig submits, she must at least have been entitled to the severance package as of 1 November 2003 that was on offer to her and which the Respondents in their submissions accepted would have been a proper element in the compensation. Accordingly he submitted that, albeit subject to giving credit for seventeen days’ pay and benefits in respect of the period from 1 to 17 November 2003, the Appellant should be entitled to compensation for the loss of a further six months’ pay and benefits.

For the Respondent, Mr Sutton reiterated the point which had appealed to the Employment Appeal Tribunal, namely that nothing in the way the case had been put to the Employment Tribunal justified a finding that she would have been paid the six months’ redundancy package, and that on the basis of the Employment Tribunal’s finding that the job offered to her was suitable alternative employment there would have been no basis for a redundancy payment of any kind. He also pointed out that the terms of the severance package were expressly subject to the Appellant signing a standard severance agreement and that it remained an open question, to which no attention had been given in the evidence, whether the Appellant would have been willing to sign such a document. The standard form of severance agreement was never produced to the Appellant, it was not disclosed in the course of the proceedings and no questions were asked either of the Respondent’s witnesses as to what its terms were and whether they would have insisted on it or of the Appellant as to whether she would have been willing to agree to sign it. It is reasonable to suppose that such an agreement would have included a waiver of all claims arising out of the termination of the employment at the very least. So, Mr Sutton submitted, the Appellant cannot make good her contention that she would have been entitled to receive the severance package because she did not prove, and did not seek to prove, that she would have been content to agree to the only terms on which it was or would have been on offer to her.

It seems to me that there is a good deal of force in those submissions on the part of Mr Sutton, but only up to a point. The severance package, as I have described it above, comprised two elements: the pay in lieu of notice and the additional separation pay. The letters of 25 June and 14 October make it clear that the enhanced severance payment would be conditional upon signing a standard severance agreement. So far as that element of the package is concerned it seems to me that Mr Sutton is right to say that the Appellant has not proved, and did not seek to prove, that she would have become entitled to that payment. However, as regards the first element, the pay in lieu of notice, it is clear that this element was not conditional on signing a severance agreement. Indeed it is hard to see how it could have been since such notice was the basic minimum to which the Appellant was entitled under her contract.

In those circumstances it seems to me that the Appellant is entitled to succeed on this appeal, but only to the extent of having her award of compensation for sex discrimination increased to reflect the loss of the amount of the pay and the benefits to which she would have been entitled for a period of three months, less the seventeen days after the 1 November which are already covered in the Employment Tribunal’s award. It appears to me that this would give the Appellant compensation, at the rate identified in the Employment Tribunal’s award for the period up to 17 November 2003, for an additional period of ten weeks and five days, which would take the compensation up to 31 January 2004.

In paragraph 28 of the reasons for its determination on remedy the Employment Tribunal focussed not on what package would have been offered to the Appellant but whether she would have been entitled to a redundancy payment under statute. Mr Craig told us that there had been no submissions about statutory entitlement to a redundancy payment because that was not a feature of either party’s case before the Tribunal. It seems to me in that respect the Employment Tribunal was inadvertently misled into considering something that was not relevant to the case. It is perhaps understandable that the Tribunal should not have focussed clearly on the question of the severance package which would have been on offer to the Appellant, although its terms were reasonably clear from the Respondent’s documents. It was not part of the Appellant’s case that it should be the basis of the award to her, but that is only because she was aiming much higher. Since the letter dated 14 October made it clear that redundancy with the enhanced severance package was on offer to the Appellant if she did not take up the post of National Account Manager, it was not open to the Respondent to contend that refusal to take up that post would have deprived her of any right to the severance package on the basis that it was suitable alternative employment.

It seems to me that, on the facts which the Employment Tribunal found, her entitlement to a severance package did clearly come into issue and for my part I can see no answer to the claim on Mr Craig’s part that she was entitled at least to three months’ pay in lieu of notice from 1 November 2003.

The Employment Appeal Tribunal, without the benefit of Mr Craig’s submissions representing the Appellant, accepted Mr Sutton’s proposition that, because this had never been an element of the Appellant’s case, she could not claim to be entitled to it. As it seems to me that is a fair point but only in respect of that part of the severance package as to which her entitlement could have depended on matters which needed to be the subject of evidence. That is limited to the extra severance pay. The Employment Appeal Tribunal, like the Employment Tribunal, seems to me to have overlooked her entitlement in principle to pay in lieu of notice as from 1 November 2003.

For those reasons I would allow this appeal but only to the extent of increasing the Appellant’s compensation by the amount to which I have referred.

I agree that this appeal should be allowed to the limited extent proposed by Lloyd LJ, whose judgment I have had the advantage of reading in draft. I add a short judgment of my own, as we are departing from a carefully reasoned decision of the Employment Tribunal (the Tribunal) which the Employment Appeal Tribunal (EAT) in turn upheld.

This case seems to me to highlight a substantial disproportionality between the award of damages and the costs incurred in achieving it. On 23 July 2004, the Tribunal awarded the Appellant a total of £27,787.16. For absolutely sound reasons, the achievement of this outcome required two hearings, although with hindsight it is reasonably clear that the Respondent should not have contested liability, and the Appellant substantially overstated her case at the remedies hearing.

The first hearing (the liability hearing) lasted two days (with a third day spent by the Tribunal in chambers) and culminated in a reserved decision with extended reasons running to 32 pages of single spaced A4, promulgated on 13 April 2004. The second hearing (the remedies hearing) took a further two days in court and a third day in chambers. The reserved decision on remedies, running to 24 pages of single spaced A4 was promulgated on 23 July 2004.

The appellant was represented by counsel in both the liability and the remedy hearings. As I have already stated, she was awarded a total of £27,787.16. She had some difficulty in persuading the EAT that her notice of appeal from the Tribunal disclosed an arguable point of law, and it required an oral hearing under rule 3(10) of the Employment Appeal Tribunal Rules (at which the Appellant was again represented by counsel) before the appeal was set down for a full hearing.

Orders for costs in the Tribunal are rare. Under the Regulations in force up to 1 October 2004, the Tribunal could only award costs in relation to a substantive hearing against one of the parties where that party had “acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably”. Under the Regulations currently in force, essentially the same provisions apply, although the word “frivolously” is no longer used, and the Tribunal is now enabled to assess costs payable by one party to another in any sum of to £10,000 and to make an award of costs to be assessed which may amount to a greater sum.

Orders for costs in the EAT are also unusual. An order for costs can only be made where it appears to the EAT that any proceedings were “unnecessary, improper, vexatious or misconceived or that there has been unreasonable delay or other unreasonable conduct in the bringing or conducting of proceedings”: - see rule 34A(2) of the EAT Rules 1993, as amended.

In the instant case, no order as to costs was made either by the Tribunal or the EAT. Under the Regulations applicable to both, this was plainly correct. The consequences for the Appellant, however, are unfortunate. On 12 October 2005, on her oral application for permission to appeal to this court and for an extension of time in which to appeal, the Appellant told Mummery LJ that she had already spent more than £52,000 in pursuing the claim. Mummery LJ observed that if she succeeded in this court and obtained an order for her costs of the appeal, she may have some money left, depending on the extent to which she was successful. However, if she was unsuccessful the normal rule was that she would have to pay the Respondent’s costs. Furthermore, even if she was successful, there was a likelihood that the court would remit the matter for reconsideration by a different Tribunal.

I do not raise these matters in any way as a criticism of either side (and in particular of the Respondent, which was on any view facing what transpired to be a seriously over-stated claim) or of the Tribunal which, it seems to me, carried out its task conscientiously and expeditiously. Still less do I have any answer to the manifest disproportionality between the amount of the award and the costs incurred in achieving it. Such considerations do, however, leave an uncomfortable feeling behind, and render the prospect of a remission to the Tribunal deeply unattractive, in the event that this court were minded to allow the appeal in whole or in part.

When I read the papers in preparation for this appeal, I have to acknowledge that I was unattracted by the Appellant’s case. She was seeking before the EAT and in this court that which she had expressly disavowed before the Tribunal. Before the latter, moreover, she had manifestly set her sights far too high, as the schedules of loss which she placed before the Tribunal for the remedies hearing demonstrate. Her case was put on alternative bases, one of which amounted to £287,324; the other amounted to £256,035. Neither calculation referred to a claim based on the redundancy package for which the appellant now argues.

Equally, it seemed to me on my first reading, that the Tribunal had made clear findings of fact, and had conscientiously sought to apply the law to those facts. Its award for injury to feelings (£6,500) was not the subject of the appeal to the EAT and was manifestly within the bracket for such awards identified in the guidance given by this court in Vento v Chief Constable of West Yorkshire Police [2003] ICR 318 at 335-6. All in all, the appeal appeared to me to be unpromising.

It is, therefore, a tribute to Mr. Craig’s advocacy that he has persuaded me that the Tribunal did fall into error, albeit, not, I think, to the extent for which he contends.

The test for compensation for sex discrimination has never been in issue in this case. Based on the decision in Ministry of Defence v Cannock, [1994] ICR 918 and as applied to the facts of the case, it was expressed by the EAT as “to put the Appellant in the same position as she would have been if she had continued in employment with the Respondent after her maternity leave”. The test is self-evidently based on the hypothesis that the Appellant’s position must be perceived as if there had been no sex discrimination.

Applying this test, what would have happened? On the facts found by the Tribunal, the position, as it seems to me, is as follows. The Appellant would have returned to her previous post (and at her previous rate of pay) on 18 August 2003. Thereafter, she would have worked full time. She would have remained in that post until the genuine (as opposed to the earlier and bogus) restructuring of the Respondent’s business took place at the end of October / early in November 2003. She would then have been offered the post of National Account Manager (NAM). She would have refused it.

So far, I think, there is little difficulty. The critical question is what would have happened next? The Tribunal found (and this cannot be challenged) that it was (or would have been) unreasonable for the Appellant to have refused the NAM job. Accordingly, it held that section 141 of the Employment Rights Act 1996 (ERA 1996) applied. The material part of that section provides: -

On the facts found by the Tribunal, ERA 1996, section 141(3)(b) applies, namely that although the provisions of the Appellant’s new contract would have been different, the offer of the NAM job undoubtedly “constitute(d) an offer of suitable employment” in relation to the Appellant.

That, for the Tribunal was the end of the point, and, plainly, it was correct in coming to the conclusion that the Appellant would not have been entitled to a statutory redundancy payment. In my judgment, however, that is not the end of the matter. The Cannock test is, in shorthand, what would have happened if the Appellant, absent any sex discrimination, had returned to her old job and had then rejected a suitable alternative post with the same employer?

This is not a point addressed by the Tribunal, because it regarded ERA 1996 section 141 as resolving it. But with great respect to the Tribunal, I do not think it does. Like Lloyd LJ, I think it overwhelming likely that the Appellant would have been offered the Respondent’s redundancy package, or to put the matter the other way, the Respondent’s redundancy package could have constituted a proper measure of the Appellant’s damage under this head. However, that proposition must contain an element of speculation, for the reasons I have already given, namely that the terms of the Respondent’s redundancy package were not investigated by the Tribunal, nor was the proposition that the Appellant would have accepted them. This, as the EAT pointed out, is hardly the fault of the Tribunal since the Appellant expressly sought to dissuade the Tribunal from going down that road.

In a cost free world, I might well have taken the view that this was a matter which simply had to be remitted to the Tribunal for reconsideration. For the reasons I have already given, however, and if I may be allowed some Shakespearean hyperbole, remission in this case is to be “abhorred in the imagination”, and a measure of last resort only to be followed if the court is without an alternative. Unsurprisingly, neither counsel advocated it. Furthermore, the remitted question would be (a) hypothetical and (b) so contaminated by later events as to make it difficult if not impossible for the Tribunal to reach a proper conclusion on it.

What, therefore, is the position? I am satisfied on the evidence available that the Appellant would have been offered a redundancy package along the lines identified in paragraphs 8 and 9 of Lloyd LJ’s judgment. However, I am equally satisfied that the Appellant would have been required to sign a severance agreement.

Would she have signed it? The answer is that I simply do not know. She might have done, if she perceived the immediate receipt of a payment equivalent to three months additional salary worth the abandonment of any rights she was advised she had arising out of the termination of her employment. On the other hand, she might well not, for equally obvious reasons. At this point, it seems to me that the prohibition against any form of speculation by this court and the undesirability of a remission to the Tribunal to resolve the point result in an impasse; and that Mr. Sutton, for the Respondent, is entitled to submit, as he did, that the Appellant simply has not made out her case. She cannot make good her contention that she would have been entitled to receive the severance package.

I reach that conclusion with a degree of reluctance, since no court likes resolving a case on the basis that one side has not satisfied the burden of proof. But on the other hand, the powerful point remains that this was not the Appellant’s case before the Tribunal, and that had she put her claim in more moderate terms, and in the way she now advances it, the Tribunal would have had the opportunity to consider the issue properly on the facts, and would have reached an unappealable conclusion about it.

Once again, however, this is not the end of the matter, because I agree with Lloyd LJ’s conclusion in paragraph 21 of his judgment that the failure of the Appellant’s argument in relation to the redundancy package does not affect her entitlement to three months pay in lieu of notice, which was not conditional on her signing a severance agreement. It seems to me that this is a sum to which, on the Cannock hypothesis, she was contractually entitled. It seems to me that because the argument before it was not addressed to the issue, the Tribunal simply overlooked the fact that the Appellant was entitled to this payment in any event.

Like Lloyd LJ, therefore, I would allow this appeal to the limited extent of increasing the Appellant’s award of damages by the amount identified in paragraph 22 of his judgment.

I agree with both judgments. I wish in particular to underline my agreement with what my Lord Wall LJ has said in relation to cost and proportionality.

I would only add that in my judgment it would be wrong in principle to remit the matter to the Employment Tribunal to resolve the question whether the appellant would have signed a severance agreement when faced with the offer of a redundancy package. That issue was not engaged by her case before the Employment Tribunal and there is no good reason why it should be ventilated now. However I agree with my Lords that the appellant’s entitlement to three months pay in lieu of notice is unaffected.