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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Faulkner v Gorton & Anor [1991] UKEAT 623_90_1810 (18 October 1991)
URL: http://www.bailii.org/uk/cases/UKEAT/1991/623_90_1810.html
Cite as: [1991] UKEAT 623_90_1810
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At the Tribunal
Before
SIR DAVID CROOM-JOHNSON DSC VRD PC
MR J H GALBRAITH CB
MR R J LEWIS
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant Mr C Holden
Trade Union
Regional Official
SIR DAVID CROOM-JOHNSON: This appeal is a preliminary hearing, ex parte, on behalf of Mr Faulkner from the decision of an Industrial Tribunal held at Hereford on Monday 24 September 1990. The appeal has been presented to us by Mr Holden on behalf of Mr Faulkner in a submission which for brevity, succinctness and clarity I do not think can ever have been equalled and for which the Tribunal is most indebted.
The facts are very short, perhaps it is not really necessary to recite them as they are set out in the decisions of the Industrial Tribunal but they basically are, that Mr Gorton, the Respondent, ran a school with a partner, for maladjusted children. His partner walked out on him at very short notice; to protect his position Mr Gorton gave redundancy notices to the staff on 3 October 1989. It then turned out that he found that the pupils were coming back, the partner who had walked out was going to go away and start a rival school in competition very close which might have been fatal to Mr Gorton's school, but he found by 16 November that things were going to be alright. He had a staff meeting on 16 November 1989, which the Tribunal decided had explained fully to everybody what the position was.
It was attended by Mr Faulkner, one member of the staff who had received the redundancy notices. For some reason or other he did not immediately say that he had an offer of another job or had received an offer which he had accepted, but it appears on the findings of the Tribunal that by 13 November anyway, he had accepted an employment with the, what I call the "rival" school, to start at the beginning of the year. Why he did not speak up and say so we do not go into, nor did he write any letter to Mr Gorton saying that he had another job until 15 December, a letter which unfortunately did not arrive until some days later after the end of term. That was treated as a letter of resignation by Mr Gorton, who concluded that he was not obliged to make any redundancy payment.
Mr Faulkner began proceedings after that refusal, and came before the Industrial Tribunal who held that he was not entitled to a redundancy payment. The points which have been raised by Mr Holden in his submission are that the Industrial Tribunal in coming to its conclusion, applied section 84 of the Employment Protection (Consolidation) Act 1978, when what it should have done was to apply section 82 of that act, and that therefore having applied what he submits was the wrong section, did not apply its mind to the matter which was pertinent, which is the last part of section 82(5). The question was whether the offer of re-employment made by Mr Gorton which was submitted on 16 November, was reasonably refused by Mr Faulkner. Indeed, as to whether it was refused at all.
There seem to the Tribunal to be matters which do require investigation. We are accordingly going to order a full hearing. We note that the hearing lasted only a short time before the Industrial Tribunal and that a certain amount of oral evidence was given. We are therefore going to order that the Chairman's Notes of Evidence should be made available to the Employment Appeal Tribunal and to the parties, and we say no more.