United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1064_94_1301

Appeal No.EAT/1064/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13th January 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS R CHAPMAN

MR E HAMMOND OBE

---

HUNT & NASH CHARTERED SURVEYORS          APPELLANTS

(1) MRS S DUNSTALL

(2) MRS A LAWRENCE           RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellants NO APPEARANCE BY OR

REPRESENTATION ON

BEHALF OF THE

APPELLANTS


 


MR JUSTICE MUMMERY (PRESIDENT): This is a Preliminary Hearing of an Appeal against a Decision of the Industrial Tribunal held at Reading. There are several Decisions raising the same point between former employees and the firm of Hunt & Nash, Chartered Surveyors.

The purpose of the Preliminary Hearing is to decide whether there is an arguable point of law in the appeal. Notice of the hearing today has been given, but nobody has attended on behalf of Hunt & Nash who are appealing Decisions of the Tribunal. The Applicants making claims of unfair dismissal against them had been employed for at least 16 hours a week for a continuous period of two years. They claim redundancy payments.

In the two cases effecting Mrs Dunstall and Mrs Lawrence, the Tribunal decided, in each case, that they were within the qualifying provisions for making a claim for a redundancy payment. They also decided, having resolved that Preliminary point, that the two Applicants were dismissed by reason of redundancy.

The Notice of Appeal dated 31st October 1994 raises the point that extended reasons requested have not been provided; that the Decisions were taken not by the Tribunal but at preliminary meetings heard only by the Chairmen who should have determined only the points at issue, not points which should have been considered only by a full Tribunal. There was also a complaint that additional evidence sent in the post to the Tribunal was not taken into account.

The various points raised in the Notice of Appeal can be dealt with shortly. The complaints against the firm of Hunt & Nash were that there had been dismissals from the position of clerical assistants of both Mrs Lawrence and Mrs Dunstall.

The Notice of Appearance by the firm was that the dismissals were for redundancy but the basic hours of 16 hours a week given were not correct. It was argued that the calculations and the total hours worked failed to take allowance for lunchtime breaks of three quarters hour a day, except Wednesdays. That reduced the basic number of hours worked per week to well below 16, thus taking the Application outside the scope of a redundancy payment.

In those circumstances, the question came before the Chairman of the Tribunal as a Preliminary matter to determine whether the Applicants were employed for a continuous period of 2 years and had the requisite service to claim the protection of the legislation. The reasoning of the Chairman set out in Mrs Dunstall's case, in Full Reasons notified on the

14th July 1994, was that the Applicant was employed for a period and working a number of hours a week that brought her within the protection of the legislation. He concluded that she had the requisite two years continuity of service and could therefore proceed with her claim.

He also said that he took into account written representations which had been sent in on behalf of the Respondents.

In our view, the Appeal can be disposed of shortly, for this reason. As mentioned by the Chairman in his Decision, the House of Lords Decision in the Queen v the Secretary of State for Employment ex parte Equal Opportunities Commission [1994] IRLR 176, made it irrelevant to consider the point raised by the Respondents. It was decided in that case, that the threshold of 16 hours a week was contrary to Article 119 and the relevant EEC Directives and that no objective justification for the thresholds were established. Therefore, a part-time worker who had more than two years continuous services, as these two Applicants did, was entitled to claim redundancy payment, even though he had not worked for 16 hours a week over the period of two years or more.

In fact the Tribunal came to a conclusion which is in our view, legally correct. The House of Lords have made it impossible to support the Respondents contention in the case.

There is no arguable point of law arising on this Appeal. The law is in favour of the Applicants. There is no point in the Appeal proceeding further. It is therefore dismissed at this Preliminary stage.