Appeal No.	EAT/1047/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 November 1999

Before
THE HONOURABLE MR JUSTICE CHARLES
MISS C HOLROYD
MR S M SPRINGER MBE

MR R PENNINGTON	APPELLANT

THE LEGAL AID BOARD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR P WALLINGTON
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

	MR JUSTICE CHARLES:	The parties to this appeal are a Mr Pennington and the Legal Aid Board.  It comes before us today by way of preliminary hearing.

1	The appeal is against a decision of the Employment Tribunal which was sent to the parties on 14 July 1999.  The decision of the Employment Tribunal was in three paragraphs.  It is the second paragraph of the decision namely that “the claim of dismissal for the assertion of a statutory right is dismissed” that is the subject of this appeal.  

2	Mr Pennington has been represented today through the ELAAS scheme by Mr Wallington we are, as usual, very grateful to him and also to the ELAAS scheme. Mr Pennington should also be grateful for the help they have given to him. Mr Wallington also helpfully provided us with a skeleton argument in which he sets out a reformulation of the grounds of appeal which he rightly says identifies the essential elements of the original Notice of Appeal and we will give leave to amend the Notice of Appeal to substitute that reformulated ground in the Notice of Appeal in place of the existing grounds.  We will do that on the basis that the Respondents can apply to vary or discharge that amendment, it being made in their absence.  That ground is set out in the following terms:

“In the light of the findings of fact made by the Tribunal, and the facts as evidenced by undisputed evidence and documents generated or tendered by the Respondent, the Tribunal erred in law in failing to determine, properly and by reference to those facts and that evidence, and making any necessary inferences, that the reason or principal reason for the dismissal of the appellant was that he had asserted his statutory right to be permitted time off for the performance of his public duties; alternatively the Tribunal’s finding to the contrary was perverse.”

3	Our function today is to consider whether or not we consider that this appeal raises reasonably arguable points of law.

4	We consider that the grounds of appeal as reformulated do raise reasonably arguable points of law.  It follows that we also considered that the original Notice of Appeal did the same and in our view those points of law are reflected in the reformulated grounds.

5	We think it right at this stage to comment that although we accept that they are reasonably arguable we think that the points raised as to the application of the decision of the House of Lords in Nagarajan v London Regional Transport [1999] IRLR 572, to sections 98 and 104 of the Employment Rights Act, both as a matter of statutory construction and as a matter of policy are not self evident and need careful consideration.  We also comment that if Mr Pennington fails to establish the argument as to error in approach by the Employment Tribunal he will plainly have a steep hill to climb in establishing perversity but at this stage, in our judgment, it would be wrong to exclude a free standing perversity argument.

6	Given our comments as to the application of Nagarajan, both as a matter of law and policy and its potential “knock-on” effect on the reasons given by Employment Tribunals for their decisions in cases under the Employment Rights Act, we think it appropriate that we should give this case Category A so that it is heard by a Tribunal chaired by a High Court Judge or the President and we will give the matter a time estimate of a day.  I direct that the amended Notice of Appeal be filed and served within 21 days.