Donlon v Wakefield Metropolitan District Council

Where the existence or timing of an alleged dismissal depends on disputed evidence about the parties’ conduct, the issue should not be determined at a preliminary hearing. The tribunal should hear both sides before reaching a safe conclusion on whether there was a dismissal, when it occurred, and whether it was unfair. An Employment Appeal Tribunal may set aside a purported finding of dismissal where it is a legal conclusion drawn from the facts rather than a pure finding of fact, and remit the matter for a substantive hearing.

Mr Donlon complained of unfair dismissal after his employer decided that he would not return to his former post but continued discussions about redeployment. The Employment Tribunal, at a preliminary hearing, held that his employment had terminated on 18 October 2000 and rejected his argument that it was not reasonably practicable to present his claim within time under Section 111(2)(b) of the Employment Rights Act 1996.

The Employment Appeal Tribunal set aside the finding of dismissal and remitted the matter for a full hearing. The Council appealed, contending that the Employment Tribunal’s conclusion was either a permissible finding of fact or that the effective date of termination should be fixed at 18 October 2000. The central issue was whether the questions of dismissal, its timing and unfairness could safely be decided at a preliminary hearing.

The Court of Appeal unanimously dismissed the Council’s appeal.

1. The Employment Tribunal had treated the events of 18 October 2000 as terminating Mr Donlon’s employment, despite the Appeal Board having ordered his reinstatement and despite the absence of a clear finding that his employment had been terminated. The Tribunal had also considered the time issue under Section 111(2) of the Employment Rights Act 1996.
2. The Employment Appeal Tribunal was entitled to interfere. The Employment Tribunal’s conclusion that the employment had ended as a matter of law was not simply a finding of fact. It was a legal conclusion which could be examined on appeal.
3. The Employment Appeal Tribunal correctly held that what had actually occurred required examination before any conclusion about dismissal could safely be reached. The events might have involved repudiatory conduct, but Mr Donlon continued to seek reinstatement and the Council continued to discuss alternative employment. The Court did not determine whether those events amounted to dismissal or constructive dismissal.
4. This was not a suitable case for disposal at a preliminary hearing. Evidence from both sides was required on whether there had been a dismissal before the claim was presented, when it occurred, and whether it was unfair. The matter was therefore properly remitted for a substantive hearing.

Lord Justice Kennedy added that he would have preferred the matter to be heard by a differently constituted Employment Tribunal. The formal order was that the appeal be dismissed, with costs subject to detailed assessment if not agreed.

• Court of Appeal (Civil Division): In Donlon v Wakefield Metropolitan District Council, [2003] EWCA Civ 1200, the Council’s appeal was dismissed with costs subject to detailed assessment if not agreed.
• Employment Appeal Tribunal: On 23 January 2003, allowed Mr Donlon’s appeal from the Employment Tribunal, set aside its finding that there had been a dismissal, and remitted the matter for rehearing.
• Employment Tribunal: At a preliminary hearing on 26 September 2001, held that employment had terminated on 18 October 2000 and rejected the argument that presentation within the primary time limit had not been reasonably practicable.