Appeal No.EAT/1174/99 & EAT/1409/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 May 2000

Before
HIS HONOUR JUDGE H WILSON
MR D J HODGKINS CB
MR P M SMITH

MR N CHEEL	APPELLANT

COMMERICIAL UNION ASSURANCE COMPANY	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON

JUDGE WILSON:

1.	We have been concerned with the preliminary hearing of the proposed appeal by the Appellant the original applicant concerning the decision by the Tribunal, a Chairman sitting alone on 2 July 1999 and there was also a question concerning the refusal by the Chairman of a review of her decision.  She gave a decision in that matter on 20 September 1999 in the course of which she set out the five grounds, upon which a review may be granted and the only one of which could possibly be relevant, was the fifth and last.  Namely the interests of justice require such a review which was indeed the presumably what the Appellant was relying on and she formed the view that the interests of justice did not require a review based on the request dated 6 August.  Nothing has been put before us to suggest that, that was not a conclusion to which a Chairman properly directing herself, as this one clearly did, could not reasonably come and accordingly the appeal would not have any chance of success if it went to fuller argument and we dismiss the appeal at this stage concerning the refusal of a review.  So far as the Appellant’s ground of appealing against the decision.  I will deal with those on our behalf in the order in which they are set out by the Appellant in his Notice of Appeal and those grounds have been amplified by him, not only in the grounds of appeal, which he set out and which we have had the opportunity to consider, but also in the remarks that he has been making to us in his submissions this morning.

2.	The first ground of appeal concerns the inclusion of paragraph 1 of the extended reasons of a reproduction vibrating of a private letter from the Respondent to the Applicant dated 10 June 1998.  The Chairman has quite properly observed that that was a document put in evidence in front of her and was therefore, thereby, a public document in the sense that it was a document in the public domain.  The Appellant complains that it contains allegations against him, which have not been counted by an equally full exposition of his written reply to the Respondent.  What it comes to is that he is asking us to edit the extended reasons given by the Chairman in support of her decision in his favour and that is a function which is beyond any power of this Tribunal, or indeed of any Appellant? Tribunal.  We cannot revise or edit a judgement, we can only decide, whether or not there are errors of law or mixed law and fact in it.  Insofar as today’s judgment will be a public document, we can observe that the allegations made against the Appellant in the letter under consideration have never been tested in litigation and therefore remain mere allegations.  The Chairman quoted exstentively from the letter because it founded the case and the success of the Appellant because as she says elsewhere in her extended reasons that the Respondents admitted wrongful dismissal and a dismissal in breach of their own procedures.  She also observed and I quote in paragraph 8 of her judgment: 
8. “I am satisfied that on the wording of the letter which is set out in paragraph 1 above the Respondent’s set out what they feel they could do, namely terminate without pay in lieu of notice but in fact do pay the appropriate amount of damages for terminating the contract early to represent the notice period.”
In paragraph 13 she says and I quote: 
13. “The circumstances of the Applicant’s dismissal whilst personally unpleasant for him are not such that any stigma attaches to him from having worked for or been involved with the Respondents.  What is evident from the documentation provided in support of this is that there was an extremely poor working relationship between the Applicant and his line manager and that matters were coming to a head.  These are not circumstances which mean that the Applicant has in any way been damaged for the future because he has been dismissed.”
And I repeat the issues have never been litigated.

3.	The second ground of appeal is that objection is taken to the ruling by the Chairman that she could not consider complaints about the outcome of a directions hearing which had taken place earlier for two reasons, first of all because it was not for her to enter into discussion, regarding directions made by another Chairman because it was inappropriate for her to be asked to act as an appeal body from such a previous hearing.  We find that she was absolutely right in that sense.  The Appellant appeared to be complaining before us that he had sought a review of those directions hearing and that his application for such a review had been ignored.  There is no evidence before us of such a situation and in any case, even if there were the Chairman was right when she said that it would have been out of time.  That ground must therefore be dismissed.

4.	The third head of complaint is that the Chairman dismissed the inclusion in his claim by the Appellant of damages by way of recovery of legal expenses, incurred to obtain the performance of contract.  The Chairman dealt with that in paragraph 14 of her extended reasons and found that it was an appropriate head of damage because it could not be said that the costs of seeking legal advice were consequential on the breach of contract.  They were consequential on an attempt to avoid the breach of contract.  We can find nothing wrong with the reasoning of the Chairman in that connection and she might well have gone on further to say that costs are a separate matter from the litigation of an issue. In most jurisdictions in this country, where an issue is litigated the successful party is entitled to seek and usually is awarded costs but that is not the case with this jurisdiction.  Head 3 of the proposed appeal must therefore also be dismissed.

5.	Fourthly and finally, the Appellant complains that the Chairman got it wrong when she dismissed his claim for paying compensation, the holiday entitlement not taken as dealt with in paragraph 10 of her reasons.  What she said there was that the documents to which she had been referred did not identify that there was an express contractual term entitling the Applicant to receive payment for any holidays as yet untaken.  His contract of employment prescribed that he was entitled to 20 days holiday but did not indicate what should happen, should he have any outstanding holiday on termination.  Until the introduction of the Working Time Regulations 1998, there was no freestanding right to have payment in lieu of holidays due.  No argument was put forward to me that this was the custom and practice within the firm and therefore it was not a contractual term on which I could make any order.  And she therefore made no order.  

6.	Having considered everything that the Appellant has said and written concerning that head of proposed appeal also we find that there is nothing in paragraph 10 to suggest that it was not a conclusion to which a Chairman, properly directing herself could not reasonably come and according the fourth head has no prospect of success, anymore than the previous three do and where the matter to proceed to full argument and the whole appeal must be dismissed at this stage.