Appeal No. EAT/1042/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 June 2001

Before
HIS HONOUR JUDGE PETER CLARK
(AS IN CHAMBERS)

MR B BAILEY	APPELLANT

SNELL & WILCOX LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

MEETING FOR DIRECTIONS

Revised

	APPEARANCES

For the Appellant	MR C M GASKELL
Solicitor
Messrs Cutter Gaskell
Solicitors
159 Ashley Road
Hale
Altringham
Cheshire
WA15 9SE	
For the Respondent	MR G LUCIE
(Of Counsel)
Instructed by
Messrs Griffith Smith
Solicitors
47 Old Steyne
Brighton
BN1 1NW	

JUDGE PETER CLARK

1.	This is a directions hearing, held pursuant to an order made by a division presided over by Judge Levy QC at the resumed Preliminary Hearing held in this case on 16 November 2000, in order to refine the issues in the appeal and to give any necessary further directions.

2.	The issues raised in the appeal are identified in the Amended Grounds for appeal dated 3 March 2000 and supplemented by an affidavit and exhibit sworn on the same date by the Appellant and responded to by a statement of Mary Rayfield, the Respondent’s Human Resources Executive, dated 2 February 2001, annexed to which is a written submission dated 24 November 2000 on behalf of the Respondent seeking a review of the Employment Appeal Tribunal order of 16 November (that application I am told has been dismissed) and detailed comments from the Chairman of the Employment Tribunal which dismissed the Appellant’s complaint, Mr Simpson, dated 6 December 2000.

3.	By way of background, the Appellant presented an Originating Application to the Southampton Employment Tribunal on 6 May 1999, following termination of his employment with the Respondent on 31 March 1999.  His first head of complaint was said to be constructive/unfair dismissal.  It is not clear from the form IT1 whether any other cause of action was there sought to be raised.  The claim was resisted.

4.	A directions hearing took place before the Regional Chairman, Mr Edwards, on 21 June 1999.  On the same day that Chairman issued an interlocutory order setting out the particulars of repudiatory breach relied on by the Appellant in support of his claim of constructive dismissal.

5.	The full hearing took place before Mr Simpson’s Employment Tribunal on 30 June 1999.  By a decision promulgated with extended reasons on 20 July 1999 the Appellant’s complaint was dismissed.  It is against that decision that this appeal is brought.

6.	Although in the early stages of these appeal proceedings the Appellant raised certain questions of bias and misconduct on behalf of the Chairman, the present state of the appeal is as set out in the Amended grounds, drafted by Mr Gaskell, to which I have referred.  The earlier complaints were specifically abandoned at the first Preliminary Hearing held on 14 January 2000 before a division presided over by Charles J.

7.	The thrust of the appeal is that the Simpson Employment Tribunal failed to adjudicate on a number of material issues raised before them.  They can be put into 3 categories:

A.	Constructive dismissal (that is a dismissal under Section 95(1)(c) of the Employment Rights Act 1996).

B.	Actual or direct dismissal (that is under Section 95(1)(a) of the Act).

C.	Breach of Contract. 

8.	In the course of this directions hearing I have been greatly assisted by the Advocates appearing as to what issues are left in this appeal for the purpose of the full appeal hearing ordered by Judge Levy’s division.

9.	I can deal shortly with the 3rd category.  That is the breach of contract claim.  It is common ground between the parties before me that the Appellant did not raise either in his Originating application nor before the Regional Chairman or subsequently at the full hearing before the Simpson Employment Tribunal a free standing breach of contract claim which related to alleged non payment of profit related pay due in December 1998 but not payable until after termination of the employment in March 1999.

10.	In these circumstances, bearing in mind the Court of Appeal decision in Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 Mr Lucie as he is entitled to do withdrew any concession that that claim ought to be remitted to an Employment Tribunal for hearing, that concession appearing in the grounds for review of Judge Levy’s decision and Mr Gaskell in terms conceded that there was no basis for that ground of appeal.  Accordingly that part of the appeal has been formally abandoned.

11.	There remain outstanding issues in relation to the both the constructive dismissal and actual dismissal heads of appeal.  As to the Employment Tribunal’s finding that there was here no constructive dismissal the issue appears to be this.  Mr Gaskell submits that the Simpson Employment Tribunal on the face of its reasons did not determine whether or not the alleged fundamental breaches of contract identified at paragraph (ii) (c)(d) & (e) in the order made by Mr Edwards on 21 June 1999 were in fact fundamental breaches of contract.

12.	In response Mr Lucie indicates it is the Respondent’s case that on the overall findings of the Employment Tribunal those matters did not go to the root of the case.  The reason for the Appellant’s resignation from this employment being a separate matter that is an exhortation to fill in timesheets.

13.	As to the question of actual dismissal it is accepted, as appears from paragraph 3 of the Chairman’s comments letter dated 6 December 2000, that the Appellant was contending before the Employment Tribunal, in the alternative, that he was constructively dismissed or if not he was actually dismissed during his notice period running between 2 and 31 March 1999.  Mr Lucie accepts that that alternative way of putting the case is not specifically dealt with in the Employment Tribunal’s reasons.

14.	Mr Gaskell therefore submits that there is here an error of law and a failure to deal with a material issue.  That is not conceded by Mr Lucie but he will argue in the alternative that if that is right then under the principle in Dobie v Burns International [1994] ICR 812 that the Employment Tribunal’s decision that there was here no dismissal under section 95 of the Act is plainly and unarguably right and that issue may arise for determination by the division which finally hears this appeal.

15.	That deals with the issues outstanding in the appeal.  Further directions have been agreed in particular it is agreed this is not a case in which a hearing of live evidence will be necessary in accordance with the guidance given by Lindsay P in Facey v Midas Retail Security [2000] IRLR 812.  It is further agreed that the Respondent will lodge an answer within 28 days.  The appeal as presently constituted will be listed for a half day hearing – Category B.  There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing.  Copies of those skeleton arguments to be lodged with the Employment Appeal Tribunal at the same time.  No further directions are necessary.