Appeal No.	 EAT/623/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 October 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR R JACKSON
MISS D WHITTINGHAM

MR H BENNETT	APPELLANT

SHELLYS SHOES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR M K GALBERG
(of Counsel)
The Betts Partnership
Solicitors
Phelps Cottage
357 Upper Street
Islington
London
N1 0PD

	MR JUSTICE MORISON (PRESIDENT):     The purpose of this hearing is to determine whether there is an arguable point of law in Mr Bennett’s prospective appeal against a decision of an Industrial Tribunal held at London (North). The decision was sent to the parties on 3rd April 1997. By their decision the tribunal concluded that Mr Bennett had been fairly dismissed by his former employers Shellys Shoes Ltd. There were two claims. One a claim for unfair dismissal; and secondly, a claim for wrongful dismissal. 

	On this appeal it accepted that there is no arguable point of law against the unfair dismissal decision of the Industrial Tribunal. In relation to the wrongful dismissal, it is submitted that the tribunal have applied the wrong test.

	In dealing with wrongful dismissal, they have said this:

“13		As to the claim for wrongful dismissal we find that, on the balance of probabilities, the Applicant has not made out the claim that the Respondent had no reasonable grounds for believing Mr Bennett had stolen £49.99. That being the case, and our findings of fact and the conclusion that the summary dismissal fell within the reasonable band of responses of a reasonable employer, the claim for a payment in lieu of an appropriate notice period is also dismissed.”

	It is submitted to us by Mr Galberg, to whom we are indebted, that the Industrial Tribunal erred in law in their approach. He says simply that the question as to whether there has been a breach of contract entitling the employers to terminate the contract without notice does not depend upon the belief of the employer, rather, it depends upon the employer proving to the tribunal that on a balance of probabilities the employee committed the act of gross misconduct alleged.

	It is to be noted that Mr Bennett and Shellys Shoes Ltd were represented by professionals. Shellys Shoes had the advantage of being represented by Counsel, the applicant was represented by somebody described as a ‘consultant’ who is taken to know the law, otherwise he should not be acting, or holding himself out as competent to act, on behalf of his customers or clients.

	The problem is this. It would appear that neither Counsel nor the consultant made any representation to the tribunal that they should approach the wrongful dismissal decision in any way differently from that which they did. It would accordingly appear, therefore, that the question that is raised by this Notice of Appeal was not a matter which was raised before the Industrial Tribunal. That causes us some concern. There is, in addition, as I have indicated, a question as to our jurisdiction to hear appeals in breach of contract matters, which as yet remains unresolved. 

	We consider that we need to hear what the respondents have got to say on the issue which has been raised, and whether we ought to be dealing with it at all. We propose, therefore, to adjourn this preliminary hearing, and for the respondents to be invited to participate in it on the basis that if we are satisfied that it should go ahead for a full hearing, we will then proceed to hear the appeal then and there.

	The reason why we have taken this view, is that we wish to protect our position in the event that we should be persuaded that the point should not be permitted to be argued at all as a result of it not having been argued below. If we were to take that view, we shall simply dismiss the appeal without proceeding to a full hearing.

	We shall also take into account in deciding how to deal with this matter the question as to whether the case should be referred back to the Industrial Tribunal, and whether further evidence would be required. Because, as it seems to us on a quick review of the authorities, the question as to whether any further evidence would be required is a matter which is relevant to the question as to whether we should accept jurisdiction on a point which was not argued below.

	We think that this point can be put into the list relatively quickly. It should come back before me. I would estimate it would take no more than two hours.