United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 629_93_2802

Appeal No. EAT/629/93

EAT/649/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 28th February 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR T S BATHO

MR D O GLADWIN CBE JP

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MRS M D JONES          APPELLANT

GWENT HEALTH AUTHORITY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR H R JONES

(Husband)


 


MR JUSTICE MUMMERY (PRESIDENT): There are, before this Tribunal, two appeals against decisions of the Industrial Tribunal held at Cardiff in July last year. The Appellant in each case is Mrs Jones, who was appointed a Health Visitor for the relevant Health Authority on the 27th September 1971, the relevant Authority at that time being the Monmouthshire County Council. The relevant Authority is now the Gwent Health Authority, the Respondent.

The first appeal concerns proceedings instituted by a complaint presented by Mrs Jones to the Industrial Tribunal on the 8th April 1992. In those proceedings she claimed that she had been unfairly and constructively dismissed from her permanent, superannuated appointment as the Health Visitor for the Monmouth Area. She stated in the details of her complaint that her employment began on the 27th September 1971 and ended on the 24th January 1992.

In answer to that complaint the Health Authority denied that there had been constructive dismissal. They stated:

"Following a disciplinary hearing held under the Provisions of Gwent Health Authority Disciplinary Procedure the Applicant [Mrs Jones} was dismissed on 24th January 1992 for gross misconduct in that she had refused a reasonable request by the Respondents [the Authority] that she should report for work, following a long period of sickness, at Usk rather than Monmouth."

Alternatively, the Authority alleged that there had been a complete breakdown in the relationship between her and the Authority. It was also alleged:

"On 23rd January 1992, the Applicant [Mrs Jones] applied for leave to retire from the National Health Service on the grounds of ill health. This application was duly processed and accepted, and has been put into effect, Under the terms of her application for retirement the last day upon which she was employed by the Respondents was 24th January 1992."

Those proceedings came before the Industrial Tribunal. There were hearings on the 5th January 1993 and the 5th and 6th July 1993. The decision of the Tribunal was in these terms:

"The unanimous decision of the tribunal is that the application be dismissed upon withdrawal by the applicant during the course of the hearing. No Order shall be made as to costs."

The Reasons stated briefly:

"On the third day of this hearing Mr Greensmith for the respondent [Health Authority] indicated that he had offered to Mr Jones [appearing for his wife] not to apply for costs provided that Mrs Jones withdrew. That offer had been accepted (as indeed Mr Jones confirmed)."

So the order was made dismissing the application.

Mr Jones put in a Notice of Appeal on behalf of his wife on the 14th August 1993. He made various allegations in his Notice of Appeal on which the Chairman of the Tribunal has been asked to make observations. He has done so by a letter of the 15th February 1994 accompanied by a memorandum, prepared and signed by the Members who sat with him on the 6th July 1993. The documents confirm the impression created by the wording of the appeal that Mr Jones, on behalf of his wife, withdrew the proceedings on the basis that there would be no order for costs sought against him. In his appeal, and in his submissions to us, Mr Jones agreed that there had been a withdrawal of the proceedings, but his point was that the withdrawal was in consequence of the way in which the proceedings were being conducted by the Tribunal. In particular, his complaint was that the Tribunal had made rulings which he did not accept. The Tribunal objected to Mr Jones raising issues during the course of the arguments and the evidence on which a ruling had already been given. Mr Jones says that he did not accept the correctness of those rulings but, in view of the rulings against him, he thought there was no point in his wife pursuing the matter before that Tribunal. That led to the withdrawal of the proceedings.

As far as that appeal is concerned we are satisfied that there is no arguable point of law which can be raised for a full hearing of the Tribunal. Under Section 136 of the Employment Protection (Consolidation) Act 1978:

"(1) An Appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal . . ."

There has to be a decision or point against which to appeal.

The fact is that Mr Jones, on behalf of his wife, did not pursue to the proceedings to a final decision in which the Tribunal would have had to explain their rulings and decisions on various points. The matter was not concluded in that way because of the withdrawal. If proceedings are withdrawn and, therefore, dismissed there is no decision of the Tribunal or point arising in the proceedings which reveals an error of law against which an appeal lies. The appeal will therefore be dismissed. To avoid confusion, the number of the case in which that appeal is raised is case number 19784/92.

That is not the end of the matter because Mr Jones, on behalf of his wife, wishes to pursue a second appeal. The second appeal is against a decision of the 6th July 1993 in respect of proceedings brought by Mrs Jones for unlawful deductions from wages under the Wages Act 1986. That complaint was presented on the 27th March 1993. The complaint was that there had been unlawfully deducted from her wages monies in respect of holiday entitlement, employers' pension contributions to her pension and other allowances in respect of the provision of a motor vehicle. That complaint is made in case number 18949/93. In those proceedings the Health Authority entered an appearance on the 27th April 1993 stating in defence that Mrs Jones was dismissed by the Health Authority on the 23rd January 1992 for failing to comply with reasonable instructions. There had been an appeal under which the decision was varied to provide that the dismissal should have been with notice. Accordingly, on the 5th January 1993, the Health Authority paid a cheque to Mrs Jones equivalent to three months' salary without deduction for income tax and national insurance. The cheque was for £4,081.48. The Health Authority's case was that payment was not one of wages within the meaning of the Wages Act 1986 and, therefore, could not be entertained under that Act. Alternatively, the Health Authority's point was that the Applicant's employment ended on the 23rd January 1992 and there was no entitlement to holiday pay, pension contributions and other advances beyond that date.

The Industrial Tribunal decided that the complaint under the Wages Act should be dismissed and upheld the Health Authority's contentions. Briefly, the Tribunal stated:

"the case does not fall within the Wages Act."

and referred to a recent decision in the House of Lords to the effect that monies in lieu of notice do not count as wages within the definition of the Act and therefore a claim or complaint in respect of deductions cannot be entertained.

On this appeal Mr Jones summarised a number of errors of law which he wished to canvass. They are various ways of challenging the validity of Mrs Jones' dismissal. His overall contention is that Mrs Jones was invalidly dismissed. He wishes to refer for that purpose to Statutory Instruments governing his wife's employment as a Health Visitor. One point is that, in making the decision, various documents were ignored so that it was not a valid decision. Another point is that the decision was not taken by the Authority itself. It was taken by an employee of the Authority contrary to the relevant provisions in the Statutory Instruments. Following the purported dismissal there was an appeal. The position pending an appeal was that she was not dismissed. There was a suspension or what was described as a "Status Quo" regime during which she would continue, or might continue, to be entitled to wages.

That, in a very summary form, is the nature of the appeal which the Appellant wishes to pursue. Without stating any view on the likelihood of these points succeeding at the hearing, we are satisfied that the matter should be argued at a full hearing when the Health Authority can be represented and can state its answers to these points. There will also be a full opportunity for Mr Jones to state under less pressure of time the more detailed aspects of his complaints.

For those reasons the only direction we give in relation to the Wages Act appeal is that the matter proceeds to a full hearing.