United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 295_93_1811

Appeal No. EAT/295/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18th November 1993

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR D G DAVIES

MR J C RAMSAY

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S P FOUNTAIN          APPELLANT

NORFOLK COUNTY COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR S REDMAYNE

(Of Counsel)

Greenland Houchen

38 Prince of Wales Road

Norwich

NR1 1HZ

For the Respondents MR D EVANS

(Of Counsel)

Director of Legal Services

Norfolk County Council

Martineau Lane

Norwich

NR1 2DL


 


MR JUSTICE MUMMERY (PRESIDENT): We started to hear the appeal this morning. We asked Counsel to deal in some detail with the preliminary concern that members of the Tribunal felt about the course of events which took place at the hearing before the Industrial Tribunal in Norwich on the 25th February 1993. It is unnecessary to go into the details of those concerns because we have been told by Counsel for the Norfolk County Council that it is now considered appropriate, without making any concessions as to the legal position, that this Tribunal should make an Order remitting the matter for a fresh hearing before the Industrial Tribunal. Remission was the course which Counsel for the Appellant, Mr Fountain, had asked us to take in the opening of the Appeal. We have considered the unusual and unfortunate circumstances of this case in detail. In our view, it is proper that this matter should be remitted. We make no further comment on the likely outcome of any further hearing. We have not fully investigated all the circumstances surrounding the hearing before the Industrial Tribunal. It is not appropriate for us to make any findings as to who was responsible for the events which have led to this matter being remitted. By consent we shall make an Order remitting the matter to a new Tribunal. We will now hear submissions about costs and anything else that arises out of that Order.

We have already given our reasons for making the order by consent for this matter to be remitted to the Industrial Tribunal for a new hearing. We heard argument about costs. Counsel for the Appellant asked that the Appeal Tribunal makes an Order that the County Council pays the cost of the appeal in any event. Counsel for the Norwich County Council submits we should make no Order as to costs. We decline to make either of the Orders mentioned. In our view, the appropriate Order to make follows an alternative submission made by Counsel for Mr Fountain. The costs of this appeal should be paid by the Norfolk County Council in either of the following events. (1) In the event that, after a contested hearing before the Industrial Tribunal, a decision is made on the preliminary point of continuous employment in favour of Mr Fountain or, (2) in the event that the Norfolk County Council concedes, without going to a hearing and decision of the Industrial Tribunal, that Mr Fountain's position on continuous employment is correct.