Donlon v Wakefield Metropolitan District Council

The Court of Appeal dismissed the council's appeal against the Employment Appeal Tribunal's decision to set aside the Employment Tribunal's finding that a dismissal had occurred and to remit the matter for a substantive rehearing. The central legal issues concerned the effective date of termination for the purposes of the time limit in Section 111(2) of the Employment Rights Act 1996 and the correct characterisation of events of 18 October 2000 as either a termination, a repudiation requiring acceptance, or a mere proposal to vary the contract. The court held that these questions raised factual and legal matters unsuited to resolution at a preliminary hearing and that a full hearing was required to determine whether and, if so, when a dismissal occurred and whether it was unfair. The court therefore refused the council's challenge to the EAT's remittal and ordered costs to be assessed if not agreed.

This case concerns an unfair dismissal claim brought by Mr Donlon, who alleged that his effective date of termination was 2 March 2001 after reinstatement by an Appeal Board in October 2000 had not been given operative effect. The employers contended that he had not in fact been dismissed or, alternatively, that any dismissal occurred on 18 October 2000 and the claim was out of time under Section 111(2) of the Employment Rights Act 1996.

Procedural history:

• The Employment Tribunal heard a preliminary issue on time and concluded there had been a termination on 18 October 2000 and that the claim was out of time.
• The Employment Appeal Tribunal allowed Mr Donlon's appeal, reviewed authorities on repudiation and acceptance and statutory intervention, set aside the Tribunal's dismissal finding and remitted the matter for substantive rehearing.
• The council appealed to the Court of Appeal.

Issues framed:

• Whether the events of 18 October 2000 amounted to a dismissal for the purposes of Sections 95 and 111 of the Employment Rights Act 1996 or were at most a repudiatory act which required acceptance by the employee.
• Whether the Employment Appeal Tribunal was entitled to set aside the Employment Tribunal's finding made at a preliminary hearing and remit the case for full hearing.

Court's reasoning: The Court of Appeal agreed with the Employment Appeal Tribunal that the preliminary hearing had not adequately addressed disputed factual and legal questions. The characterisation of the October 2000 events could properly be a matter of construction and fact-finding at a substantive hearing: whether there had been a repudiation requiring acceptance, whether the employer had authority to dismiss, and when, if at all, the contract was terminated. Those issues implicated Section 95 (the statutory definitions of dismissal) and Section 111(2) (the three month time limit). For these reasons the EAT's decision to set aside the preliminary finding and remit for full hearing was appropriate. The Court dismissed the appeal and noted it would be preferable for the rehearing to be by a differently constituted Employment Tribunal.

Appeal dismissed. The Court held that the Employment Appeal Tribunal was correct to set aside the Employment Tribunal's preliminary finding and to remit the matter for a full substantive rehearing because the questions of whether and when a dismissal occurred (including issues of repudiation, acceptance and employer authority) involved contested facts and legal construction unsuitable for disposal at a preliminary hearing.

Appeal from the Employment Appeal Tribunal (His Honour Judge McMullen QC) which on 23 January 2003 allowed Mr Donlon's appeal from the Employment Tribunal and remitted the matter for rehearing. The Employment Tribunal had decided at a preliminary hearing on 26 September 2001 that termination had occurred on 18 October 2000 and that the claim was out of time.