Appeal No.	EAT/1140/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 November 2001

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MR H SINGH
MRS J M MATTHIAS

MS S O’NEILL	APPELLANT

MRS D WESSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	
For the Respondent 	THE RESPONDENT IN PERSON	

MR JUSTICE MAURICE KAY
1.	This is an appeal against a decision of an Employment Tribunal in which a chairman sat alone on 12th July 2000. The Appellant Ms O’Neill was the employer of the Respondent, Mrs Wesson, at Pinner Montessori Nursery School where Mrs Wesson taught. Her employment there began in 1995. She continued to teach there without interruption until the summer of 1999. 

2.	The new term was due to start on 9th September 1999. At least that is the date on which we are told the children would have first attended that year. By a letter dated 7th September 1999, and delivered to Mrs O’Neill on the following day, Mrs Wesson said 

“It is with great regret that I have to hand in my notice to you”. 

She then gave her reasons for her decision to leave and added, 

“As a consequence I will not be renewing my contract. I will endeavour to help over the next two or three weeks at my usual rate of pay to give you time to make other arrangements” 

That reference to the renewal of the contract appears to have been based on Mrs Wesson’s then understanding that she had been employed on a series of twelve month contracts ending on 31sr August each year. Ms O’Neill’s belief was that there was continuous employment. 

3.	It seemed that each year, at least in the later stages, Ms O’Neill did issue a document headed “Contract of Appointment offered by Ms O’Neill”, the last of which, on the face of it, was said to run from 1st September 1998 until 31st August 1999, although that document was never signed by Mrs Wesson. Be that as it may, it, and its predecessors, contained a term to this effect 

“Periods of notice: one school term’s notice must be given in writing by either party during the course of this contract of employment if a termination of contract is required. The contract is renewable yearly.” 

4.	For whatever reason it is abundantly clear that the notice given by Mrs Wesson on 7th September was not a term’s notice. It is probable that the reason is that she did not believe herself to be bound to give a term’s notice at that time.
 
5.	The term then started on 9th September and the next thing that happened, between the Appellant and the Respondent, was that on 16th September, solicitors acting for Ms O’Neill, faxed a letter to Mrs Wesson. We do not have a copy of that letter. However, on 21st September, solicitors acting for Mrs Wesson replied to it, the relevant paragraph in their letter reads as follows 

“Our client instructs us that there is no signed contract of employment covering her work for Ms O’Neill since 31st August 1997. Notwithstanding this our client is prepared to accept that she is required to give one term’s notice of termination of her employment and instructs us that she has done so. Our client tells us that she has made it clear to Ms O’Neill that, although she would prefer to terminate her employment at an earlier date, she is willing to work out her full notice period of one term. We are instructed that, in fact, the current term (and therefore our client’s employment) ends on 9th December and not on 16th December, as stated in your letter”. 

That dispute, as to the days between the 9th and 16th December, appears to have resulted from an arrangement made whereby Mrs Wesson took only one week at half term in October rather than the two weeks that had been anticipated and as a result was finishing her term on 9th December rather than 16th December although she tells us that she carried on working at home during that week on school work. 

6.	When the matter came before the Employment Tribunal it was in the form of a claim by Mrs Wesson for breach of contract. The primary dispute was summarised by the chairman in this paragraph 

“It was the Applicant’s contention that the contract was a contract for 38 working weeks without paid holidays. The Respondent alleged that it was an annual contract and that she had paid all that was due.” 

The chairman went through the documentation and reached this conclusion on that primary issue 

“That, taken together with the terms of the contract that I saw, satisfied me on the balance of probabilities that the Applicant and the Respondent agreed that she would be paid an annual salary payable monthly. The Applicant’s claim, as framed in the Originating Application, was based upon the total contractual sum being salary for 38 weeks work. For the reasons given I accepted the Respondent’s evidence and argument and rejected the Applicant’s contention.” 

In other words, on that primary issue Mrs Wesson lost her case. There is no cross appeal before us in relation to that although Mrs Wesson invited us to permit her to proceed with one towards the end of her submissions a few minutes ago. We declined. 

7.	Having found in favour of Mrs O’Neill on that primary issue the Employment Tribunal chairman uttered the ominous words “However the matter did not end there”. He had become concerned, during the hearing, about the contractual requirement, which he found there to be, that termination was required to be upon “one school terms notice”. He then, having heard both parties in relation to that issue, proceeded to construe that part of the contract before concluding that, under the particular contract, an employee 

“giving notice prior to the beginning of a school term would then be entitled to be paid up until the beginning of the next school term”. 

8.	We say nothing about that construction because in our clear judgment, it was made within the context of factual findings that simply did not reflect the evidence and material that was before the Employment Tribunal. As we have said the letter of 7th September could not, on any basis, be construed as the giving of “one school terms notice”. It neither did that nor was it intended to do that. 

9.	The next event in which notice was addressed by, or on behalf of, Mrs Wesson was in the letter from her solicitor dated 21st September. Although that purported to be the giving of one term’s notice, in fact it cannot possibly be construed as having that meaning. If no document had been issued prior to that purporting to give a term’s notice we ask, rhetorically, how could a document dated 21st September 1999 ever be construed as the giving of a term’s notice so as to expire at the end of that term or before the commencement of the following term?

10.	It seems to us that the solicitors had misunderstood the situation because they refer to Mrs Wesson having told them that she had made clear to Ms O’Neill that, although she would prefer to terminate her employment at an earlier date, she was willing to work out her full notice period of one term. On what we have been told by both parties this morning there was no evidence to the effect that there had ever been such a statement. Even if there had been, it could only have been made, on the information before us, after the commencement of that term and if that were so, then it would be too late, even on the most informal approach, to amount to a term’s notice. 

11.	It follows from all that that we have come to the clear conclusion that the Employment Tribunal in this case proceeded down the wrong track in the second part of its decision when it concluded that Mrs Wesson had given notice that was capable of being a lawful notice. It is clear to us that she had not done so. In those circumstances the question of the construction of the notice period simply does not arise. There never was a lawful notice emanating from Mrs Wesson terminating her employment, either at the end of that term, or at the end of the holiday that followed, and in those circumstances the conclusion of the Employment Tribunal, that she was entitled to be paid up until the beginning of the next term, was legally erroneous. 

12.	Moreover it seems to us that in these circumstances, Mrs Wesson, never having given lawful notice under the contract, the prospect of her recovering more money than Ms O’Neill had been inclined to pay her through the route of holiday pay simply does not arise. We are satisfied that the Employment Tribunal was legally erroneous and that the only conclusion, on the undisputed facts of this case, should have been that Ms O’Neill was not in breach of contract and was not further indebted to Mrs Wesson. 

13.	In those circumstances it is our duty to allow this appeal and to set aside the decision of the Employment Tribunal. It is not a case in which it would be appropriate to remit the matter to an Employment Tribunal for a further hearing. All the crucial material about this issue is before us and we are in a position to decide it. We do not accede to Mrs Wesson’s wish to reopen that part of the case that had been decided against her. Accordingly the appeal is dismissed. Could we say also that we have noticed in the reading of the papers that even after these events in December 1999 there seemed to be a degree of cordiality between the parties. We refer to a letter at page 56 of the bundle, which was written by Mrs Wesson to Ms O’Neill. We hope that that cordiality can be resumed.