Appeal No. EAT/1474/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 March 2000

Before
HIS HONOUR JUDGE PETER CLARK
DR D GRIEVES CBE
MR N D WILLIS

TETLEY GB LTD	APPELLANT

MRS SIMBAT GHATAHORDE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR R W ASTON
Messrs Aston's
The Stables, Manor Road
Staverton, Nr Daventry
Northants NN11 6JD	

JUDGE CLARKE

1	The issue in this case, which came before an Employment Tribunal sitting at London (North) (Chairman: Mr G Flint) was whether the Applicant was contractually entitled to a severance payment on her dismissal by the Respondent on the grounds of ill health, similar to the enhanced payment which she would have received under the terms of her contract of employment had she been dismissed by reason of redundancy.

2	The Applicant was employed by the Respondent from 31 October 1997 until her dismissal effective on 8 March 1999.  She then received what was described as an “ex gratia” payment of £10,000.

3	The Applicant’s contract of employment, in common with those of other employees, expressly incorporated terms collectively agreed between the Respondent and the recognised union.  The relevant collective agreement set out a formula for calculating an enhanced redundancy payment, that is a payment in excess of that produced by the statutory formula, in cases of redundancy dismissal.  However, no such provision was expressly made for employees dismissed on grounds of ill health.

4	The Employment Tribunal found, based on the evidence of Mr Lehl, the union representative on site, that a custom and practice had grown up over the years, at least as far back as 1990, that apart from a slight difference as to the figure for basic wages, all persons who retired on ill health grounds would receive a payment calculated in accordance with the redundancy formula.

5	On that basis the Employment Tribunal upheld the Applicant’s complaint of breach of contract and left it to the parties to work out the amount due in accordance with the formula, subject to deduction of the ex gratia payment.  Failing agreement, the matter was to return to the Employment Tribunal.

6	Against that decision the Respondent employer now appeals.  In support of the appeal Mr Aston has referred us to a skeleton argument prepared by Mr Daniel Tatton Brown (of Counsel) in which the following points are taken: -
(1)	the Employment Tribunal failed to give adequate reasons for its decision, both as to the facts and their application of the law to the facts as found
(a)	as to the facts, it is contended that there was unchallenged evidence from Yvonne Waller, the Respondent’s Personnel Manager, that
(i)	The Respondent had considered each case of ill-health dismissal prior to November 1998 on its merits.  There was no policy of making a payment in every case, and
(ii)	After November 1998 there had been 4 employees who left on medical grounds, 2 had received ex gratia payments and 2 had not.
Further, it is asserted that there was no evidence that the union was formally notified of the practice as found, or that it was drawn to the attention of the employees by management.
(b)	As to the law, the Employment Tribunal has failed to demonstrate that they have considered and applied the principles to be found in Quinn –v- Calder (1996) IRLR 126, applying the guidance of Browne-Wilkinson J in Duke –v- Reliance Systems (1982) IRLR 347.
[the substantive points]
(2)	He submits that the Employment Tribunal has simply granted a declaration rather than award damages for breach of contract and that the Employment Tribunals (Extension of Jurisdiction) Order 1994 does not confer jurisdiction on an Employment Tribunal simply to make a declaration. [the jurisdiction point.]

7	Dealing first with the jurisdiction point, this is not advanced with force by Mr Aston, rightly we think, and we reject it.  It seems to us that the Applicant was here bringing a claim for damages for breach of contract under Article 3 of the 1994 Order.  The Employment Tribunal upheld her claim, leaving it to the parties to resolve the question of quantum, failing which the matter was to return to the Employment Tribunal for damages to be assessed and an award made.  In these circumstances this was precisely the sort of claim envisaged by the 1994 Order.

8	However, we are persuaded that the substantive points in the appeal are arguable and should proceed to a full hearing.  In particular, we think that it is arguable that the Employment Tribunal failed to make all necessary findings of fact and that there is no adequate indication in their reasons as to the principles of law which they have applied in this case.

9	In these circumstances we shall allow the case to proceed to a full appeal hearing on the substantive points only.  The Jurisdiction point is dismissed.

10	There is no PHD form from the Respondent to the appeal, applicant below.  Mr Aston seeks the Chairman’s Notes of Evidence given by Ms Waller at the hearing.  We think in all the circumstances it would be appropriate to direct that the Chairman be asked to provide all his Notes of Evidence in this case so that a balanced view of the evidence before the Employment Tribunal will be available to the division which hears this full appeal.  We so direct.  The case will be listed for ½ day category B.  There will be exchange of skeleton arguments between the parties; copies to be lodged at the same time with the Employment Appeal Tribunal not less than 14 days before the date fixed for the Full Appeal Hearing.  There are no further directions.