United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 765_93_2411

Appeal No. EAT/765/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24th November 1993

Before

HIS HONOUR JUDGE J BULL QC

MR J A SCOULLER

MR G H WRIGHT MBE

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LLEWELLYN HOMES LTD          APPELLANTS

MR R J CANNING          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR H F JAKEMAN

(Industrial Relations Consultant)

5 Sambrook Close

The Rowans

Stirchley

Telford

Shropshire

TF3 1RT

For the Respondent MR J SUDDABY

(Of Counsel)

Messrs O H Parsons & Partners

Solicitors

Sovereign House

212-224 Shaftesbury Avenue

LONDON

WC2H 8PR


 


JUDGE J BULL QC: This is an appeal by Llewellyn Homes Limited, to whom I shall refer hereafter as the employers, from the decision of the Industrial Tribunal sitting at Brighton on the 2nd and 5th August 1993. On a preliminary application that Tribunal granted an application for interim relief under sections 161-163 inclusive of the Trade Union & Labour Relations (Consolidation) Act 1992.

The decision together with the reasons were promulgated on the 15th September 1993. There were two subsequent applications for review which were refused.

This is an extemporary judgment given this afternoon because of the urgency of dealing with this matter before the substantive hearing of this case which is due to take place tomorrow.

The issue between the parties is in short compass. The Applicant alleged unfair dismissal, under section 152(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992 upon the ground that he had taken part in the activities of an independent trade union.

The Respondents contested this asserting that the reason for his dismissal was upon the grounds of redundancy.

The Industrial Tribunal did not have to reach a final decision upon this issue. It had only to determine the question of interim relief in accordance with sections 160-163 of the 1992 Act. The principal argument on behalf of the Appellant is that the decision of the Industrial Tribunal must relate to section 152 of the 1992 Act for it is only under section 152 that jurisdiction to grant interim relief arises. The employers stress the words used by the Applicant in his Originating Application, under the heading "specify what type of complaint you want the Tribunal to decide", namely:

"Interim relief, unfair selection for redundancy motivated by my union activity."

and the employers assert that the Industrial Tribunal should have determined this matter under section 153 of the 1992 Act, for had they done so, they would not then have had jurisdiction to grant the relief which they purported to grant.

It is conceded by the employers that had an application been made to amend the original application by adding words "unfair dismissal" or the like in the alternative, the Industrial Tribunal would have had power to allow such amendment and to proceed to determine the matter upon the basis of unfair dismissal. In addition criticism is levelled at the way in which the Industrial Tribunal dealt with this matter for it originally cited the previous legislation which has been superceded by the 1992 Act, but it is conceded that no point arises from this or the corrections made by reference to the Consolidating Act. The Appellants' insistence that the Tribunal is restricted by the exact words of the Originating Application in the relief it may accord to the Applicant is wholly mistaken. What relief can be obtained is a technical matter which it is for the Tribunal to determine upon the facts which it finds at the hearing. The legal burden of proving the reason for dismissal is, by the Act, placed upon the shoulders of the employer.

It is our unanimous view that the Industrial Tribunal squarely addressed the issue. In paragraphs 3, 4, 5 and 14, they deal, in our view, quite clearly with the basis upon which they act. In paragraph 14 they specify, and I quote:

"On the evidence before us and our evaluation of it, we have to say, and we are unanimous in this, that it appears to this Tribunal that it is likely (as defined), that on determining the complaint the Tribunal will find as mentioned in sub section (1) of Section 163."

Subsection (1) of section 163 reads in the following form:

"If on hearing an application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates that it will find that, by virtue of section 152, the complainant has been unfairly dismissed, the following provisions apply."

Thus it follows that by citing section 163(1) the Tribunal were, by clear implication, making it plain that they were acting upon the basis that this was likely to be adjudged a dismissal on grounds related to union membership under section 152.

It is even more clear that the Tribunal were considering interim relief in the context of unfair dismissal if one looks at paragraphs 3, 4 and 5 of the reasons. We are unanimous in our view that those reasons put it beyond question that the Industrial Tribunal were acting in the correct way in looking at section 152 and founded their jurisdiction to grant interim relief upon that section.

We consider that no point of law is raised upon this appeal, indeed, in our view, it is hopeless and falls to be dismissed. We so dismiss it.