United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 189_95_2305

Appeal No. EAT/189/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23rd May 1995

HIS HONOUR JUDGE SMITH Q.C.

MR K M HACK JP

MS S R CORBY

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MR D WEST          APPELLANT

R A C MOTORING SERVICES          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

NO APPEARANCES OR REPRESENTATION


 


JUDGE SMITH QC: This appellant, Mr West, seeks leave for the matter to proceed to Full Hearing in respect of a decision of the Birmingham Industrial Tribunal sitting on 1st December 1994 when that tribunal unanimously decided that the complaint of unfair dismissal made by Mr West failed and was dismissed.

The Notice of Appeal, which I will turn to next, is in an unusual form, being in the form of a letter and although particulars were sought of it, no particulars were furnished. However, the fact is that the Notice of Appeal is set out in a letter from J R Jones Solicitors dated 30th January 1995 to the Registrar of the Employment Appeal Tribunal. In the second paragraph of that letter the solicitors request that the letter should be accepted as their client's Appeal, "On the ground that the Chairman at the hearing did not consider our client's whole claim and only dealt with one head of his claim." Now, that is a reference clearly, in our judgment, to his originating application, which is on page 12 in the bundle. Looking at that, in Box 1 one sees:-

"Right not to be unfairly dismissed

Right to receive a written statement of reasons for dismissal

Right to receive a written statement of terms of employment or any alteration to them with sufficient details to meet the requirements of the Act"

Now it is perfectly clear that the Industrial Tribunal dealt very fully and very clearly, and in our judgment, absolutely correctly in every respect with the application in respect of unfair dismissal. In our judgment it really is not necessary for us to say any more about that save to notice that the Industrial Tribunal found as a fact, in circumstances where there was overwhelming evidence to support such a finding, that Mr West had only been employed for a period of five months. And they then of course went on to consider whether, despite the fact he did not otherwise qualify in regard to a claim of unfair dismissal, he might qualify as he maintained under Section 57(a) of the 1978 Act under the heading "Dismissal in Health and Safety Cases". Then they took the greatest care, the Industrial Tribunal, to set out the law in relation to Section 57(a) and proceeded to apply it very carefully to the evidence in front of them, and to conclude that the submission being made to them by the appellant, was, with respect to him absolutely hopeless in support of his assertion that he had been dismissed in a "health and safety case" within the meaning of that section. For all sorts of very good reasons, in our judgment, that claim was dismissed. Indeed, we note, that there was an order for costs made by the Tribunal against the applicant on the grounds that that particular complaint was frivolous and vexatious and we agree with the decision of the Industrial Tribunal in that regard.

We do not say anything further about that matter, because there is no appeal in respect of it. It is perfectly clear from the Notice of Appeal that the appeal is based upon the proposition that the Industrial Tribunal did not deal with the whole claim. That is correct, that assertion on the face of it. Because the Tribunal do not expressly deal with the remainder of the appellant's claims.

Namely, first, his alleged right to receive a written statement of reasons for dismissal. We have looked at that ourselves carefully and have concluded that he had no right to receive a written statement of reasons for dismissal because, under Section 53(2) of the 1978 Act, an employee is only entitled to a written statement of reasons for dismissal where he has been employed for period of not less than two years. So accordingly, we reach the conclusion that there can be no possible ground of appeal in relation to that particular application.

We turn next to consider the application made pursuant to the statutory right to receive a written statement of terms of employment or any alteration to them, with sufficient details to meet the requirements of the Act. That there is such a right appears to us to be correct. Because it is plain that there is a duty on the employer to give such particulars under Section 1 of the 1978 Act. It is plain that under Section 11 of the 1978 Act the employee may require a reference to be made to an Industrial Tribunal to determine what particulars ought to have been included or referred to in the statement, so as to comply with the requirements of the relevant sections. In circumstances where an employer does not give an employee a statement as required by various earlier sections of the 1978 Act, it does appear to be clear from sub-section 9 of Section 11 that although the appellant had been dismissed at the time when he applied for the right to receive the written statement, he is still within time under sub-section 9 which is in these terms:-

"An industrial tribunal shall not entertain a reference under this section in a case where the employment to which the reference relates has ceased unless an application requiring the reference to be made was made

[(a)] before the end of the period of three months beginning with the date on which the employment ceased"

We notice that in sub-section 9 the right to present a reference to a Tribunal as set out in sub-paragraph (a) was included as a result of the Trade Union Reform and Employment Rights Act 1993 Section 51 Schedule 10 "as from a day to be appointed". It is not completely clear to us at the moment whether a date had been appointed bringing this new part of this sub-section into force.

The way in which we deal with this matter accordingly is that we will adjourn this particular part of the appeal in order that the appellant should present an application by way of a review to the Industrial Tribunal with regard to this matter. If he does so within twenty-one days, then this particular appeal can be stood adjourned until after the hearing of that review. if he fails to do so, then the matter will have to come back to this Tribunal for a further hearing.

We can see absolutely no merit whatsoever in this application on the part of the appellant for a reference to receive a written statement of his terms of employment in the circumstances of this particular appeal. However, it is a statutory right which may entitle the applicant in totally unmeritorious circumstances to such a written statement. For that reason we are adjourning the matter to give the Appellant an opportunity to seek a review from the Industrial Tribunal within twenty-one days of today's date, if he persists in this application. The Industrial Tribunal can then look at the matter and consider the law on the matter at rather more leisure to see whether there is, indeed, a right to such a written statement. And if so, to deal with the matter and make the necessary declaration. Should the Appellant not make such a reference to the Industrial Tribunal, then the matter will have to come back here again, by way of a preliminary hearing. By way of this adjourned matter being restored by way of a preliminary hearing. So that by that time, this Employment Appeal Tribunal can look once again at the matter in order to see whether there can possibly be any right in the Appellant to receive a written statement of his terms of employment.

We believe that this may be a frivolous and a vexatious application and the appellant should be warned that there may be sanctions in relations to costs should that turn out to be the case.

So that the way we deal with this preliminary application for a full hearing is as follows; first of all we dismiss any appeal that there can possibly be in relation to the application that was originally made for unfair dismissal. Secondly, we dismiss the appeal in relation to the application for a right to receive a written statement of the reasons for the dismissal. Thirdly, with regard to the alleged right to receive a written statement of terms of employment, we adjourn the matter to enable the applicant to apply for a review within twenty-one days. Should he do so, then of course this matter can await the result of that review. This appeal can stand adjourned awaiting the result of the review. Should he fail to do so, then this preliminary hearing will have to be restored to the Employment Appeal Tribunal to deal with the one outstanding matter, namely whether this matter should proceed to a full hearing on the application of the appellant to receive such a written statement. That seems to us to be in highest degree unlikely for the reasons that I have already given.