Mitie Security (London) Ltd v Ibrahim

A warning that dismissal may occur after a future period does not itself terminate employment. Actual dismissal requires communication of termination and a specified or positively ascertainable effective date. A consultation period may trigger only the possibility of later dismissal, including dismissal on notice or with pay in lieu. Removal from a work site does not necessarily amount to summary dismissal where the employer continues considering alternative work. An appellate tribunal will generally refuse to entertain a constructive-dismissal or repudiatory-breach case raised for the first time on appeal where further factual findings are required.

The respondent worked as a security supervisor. He was removed from the client’s site and told that the employer would seek alternative employment during a four-week consultation period. The letter stated that, if no position was found, the employer could issue notice and terminate his employment. He was not paid during the period.

At a pre-hearing review, the Employment Tribunal held that he had been dismissed at the end of the four-week period. The employer appealed, arguing that the letter was only a warning and that no dismissal had been communicated. The central issues were whether dismissal occurred on 23 October 2008 or earlier, when the respondent was removed from the site.

1. Appeal allowed. The finding that the respondent had been dismissed was set aside. A declaration was substituted that he was not dismissed.
2. A contract of employment is terminated by the employer only where there is a specified or ascertainable date on which the contract is to cease. Dismissal must be communicated to the employee. A warning that dismissal is likely, or may become inevitable on a future date, is not dismissal. Notice must state the termination date or contain material from which it can be positively ascertained. These principles were applied from Heseltine Lake & Co v Dowler, Hindle Gears Ltd v McGinty, Morton Sundour Fabrics Ltd v Shaw and Rai v Somerfield Stores Ltd.
3. The letter of 22 September 2008 merely warned that, if alternative work was not found during the next four weeks, the employer might then have to give notice. The expiry of that period triggered only a possibility of dismissal. It did not provide an effective termination date, and the respondent was not actually dismissed on 23 October 2008.
4. Removal from the site on 18 September 2008 was not summary dismissal. The subsequent meeting and letter showed that the employer intended to seek alternative employment at another site. The absence of work and pay did not, on these facts, communicate termination.
5. The respondent’s possible argument that the employer’s conduct amounted to a repudiatory breach accepted by him through tribunal proceedings was not pursued below. It would require further factual findings. Applying ordinary Kumchyk principles, that alternative case was not entertained for the first time on appeal. The possible relevance of Gunton v Richmond-upon-Thames London Borough Council and Rai v Somerfield Stores Ltd did not alter the result.

• Employment Appeal Tribunal: allowed the employer’s appeal and set aside the Employment Tribunal’s finding that the respondent was dismissed.
• Employment Tribunal: at a pre-hearing review, held that the respondent was dismissed with effect from 23 October 2008.