Veitch Penny LLP - Exeter | Crediton, Devon

Case

Rai v Somerfield Stores Ltd
Employment Appeal Tribunal - (12th May 2003)

Issues

(1) Unfair dismissal
(2) Date of Termination
(3) Time limits for issue of complaint

Facts

Mr Rai worked as a home delivery driver for Somerfield Stores Ltd. In June 2000 he was demoted to the position of store assistant. From that time he was absent from work. He made no attempt to contact his employer and his absence was unauthorised.

Eventually he attended a meeting on 8th March 2001. He was told there was a position for him to return to as of 19th March 2001. However he failed to arrive for work on that date where upon his employer wrote to him urging him to return to work by 9th April 2001. It went on to state that if he did not do so he would be treated as having resigned as at that date.

The employee did not return to work on the specified date and did not communicate with his employers in any way. On 14th May 2001 the employer wrote again stating that due to his continued absence his employment terminated as of 9th April 2001. However, in the meantime the employee had presented an application for unfair dismissal and unlawful deduction of wages.

The Employment Tribunal found Mr Rai’s demotion in June 2000 terminated his employment and subsequently he had been re-employed as a store assistant. As a result his originating application had been presented outside of the three-month time limit. It was found that his employment as a store assistant had been terminated with effect from 9th April 2001. Consequently, he had made his application 3 days prematurely. Therefore his complaints were dismissed.

The employee appealed to the Employment Appeal Tribunal and submitted that he had been dismissed with notice by the letter sent to him after he failed to return on 19th March 2001. He stated that as a result the Tribunal had jurisdiction to hear his claim under Section 111(3) of the Employment Rights Act. This section states, “where a dismissal is with notice an Employment Tribunal shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination.”

Decision

The Employment Appeal Tribunal found that the original Tribunal had not been correct in finding that Mr Rai’s employment had been terminated on 9th April 2001 i.e. when he had failed to turn up for work as requested. As a result, it did not have jurisdiction to consider his application, presented three days earlier. It was noted that the employer’s letter informing him of the date with which he had to return did not amount to a dismissal with notice. It could not be expected therefore that the Tribunal had jurisdiction pursuant to Section 111(3), in cases such as these. The notice in this case was not an equivocal notice to terminate the employment. It is merely giving information to the employee that if he does not turn up on a date specified his employment would be terminated as of that date. It was further noted that this sort of notice was not one that was capable of being unilaterally withdrawn.

Comments

This is an important decision given that the scenario is not an uncommon one. According to the Judgment in this case, it is not the notice that terminates the employment but it is the date on which the employee does not return to work.