United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 629_93_0407

Appeal No. EAT/629/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4 July 1995

Before

THE HONOURABLE MR JUSTICE TUCKEY

MR R SANDERSON OBE

MR T C THOMAS CBE

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MRS M D JONES          APPELLANT

GWENT HEALTH AUTHORITY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR H R JONES

HUSBAND ON BEHALF OF THE APPELLANT

For the Respondents MR ANTHONY SENDALL

(of Counsel)

Messrs Morgan Bruce

Bradley Court

Park Place

Cardiff

CF1 3DP


 


MR JUSTICE TUCKEY: The Appellant before us, Mrs Jones, was employed by the Respondent Health Authority as a health visitor for a number of years until 23 January 1992 when a manager, acting on behalf of the Authority, purported to dismiss her summarily.

Under the internal procedures of the Authority she was entitled to appeal against that dismissal, and did so with the result that

" .... the panel found that the management decision to dismiss on the grounds that you failed to carry out reasonable orders and instructions and that there had been a complete breakdown of the employment relationship between the Authority and yourself, was founded. However, the panel concluded that dismissal with notice was more appropriate in this case."

That decision was communicated to Mrs Jones by letter of 18 September 1992, and on 5 January 1993 she was handed a cheque for £4,081.48 which the Tribunal were told represented three months' salary without deduction for tax and National Insurance.

Following her purported dismissal, Mrs Jones complained to the Industrial Tribunal of unfair dismissal. That application was first heard on 5 January 1993 by the Industrial Tribunal in Cardiff. The hearing was not concluded on that day but was resumed on 5 and 6 July 1993.

In the meantime, on 23 March a further application had been made to the Tribunal, the terms of which we shall have to return to, but the summary of the complaint as recorded on the form IT1 and signed by Mr Jones (who throughout these proceedings has acted on behalf of his wife and whom we should say has presented his arguments before us in a reasonable and courteous way) summarised the type of complaint as being "unlawful deductions from wages under the Wages Act 1986". The Industrial Tribunal of course, has jurisdiction over such complaints.

That complaint was considered by the Industrial Tribunal at the same time as its resumed hearing of the complaint of unfair dismissal. From a letter which has been put before us from the Chairman of the Industrial Tribunal, it is apparent that during the hearings Mr Jones did, from time-to-time, make the point that one argument he was advancing was that the dismissal on 23 January 1992 was invalid because the Respondent Authority had not followed their own procedures, based as they were and had to be, upon the Whitley rules.

On the 6 July 1993 for reasons which we do not now need to examine, Mr Jones withdrew the unfair dismissal complaint on the behalf of the Applicant. That resulted in its dismissal by the Tribunal, who stated their reasons briefly as follows:

"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)."

That complaint therefore was withdrawn but the complaint under the Wages Act was not and the decision of the Tribunal on that point shortly (and we shall have to return to this in a moment) is that that complaint was dismissed on the simple ground that the payment which was made and to which the claim related, was not a payment of wages and therefore, the Tribunal had no jurisdiction to determine any complaint about it.

Mrs Jones appealed both those decisions and the appeals came for Preliminary Hearing before the President of this Tribunal, Mr Justice Mummery and two members on 28 February 1994. Mr Justice Mummery dismissed the appeal against the dismissal by the Tribunal of the unfair dismissal claim, because, as Mrs Jones had withdrawn her complaint, there was nothing against which she could appeal.

But as to the complaint under the Wages Act, without giving any encouragement to Mrs Jones, he allowed that appeal to proceed and it is that appeal which we have been considering today. Put shortly, the way in which the appeal has been advanced before us as can be seen from Mr Jones's Skeleton Argument dated 9 June 1995, is that as there was no valid dismissal of Mrs Jones on 23 January 1992, the Respondents should have continued to pay wages and in particular (and this is Mrs Jones's principal concern) make contributions towards pension, from that day onwards. Therefore, he argued, that this total failure to pay wages was within the ambit of the Wages Act 1986 and was covered by the complaint made to the Tribunal.

The Respondents object to this point being raised at this stage on the basis that that was not how the case was put before the Tribunal. Nor is it how the Tribunal dealt with it. It is not open to the Appellant to take a new and completely different and inconsistent point on appeal.

With that short exposition of the issue we must turn in more detail to see just how the case was presented to the Industrial Tribunal and how they dealt with it so that we can decide whether it really is open to Mrs Jones to pursue this point before us.

The IT1 which launched the Wages Act application says in terms, in box 8 that the dates of Mrs Jones's employment "Began January 1973" and "Ended January 15 1992"; that the date of the matter about which they are complaining of is January 5 1993, that is to say, the date when the £4,081.48 was paid. And under the heading, " ..full details of your complaint", the complaint is specified as:

"Unlawful deductions from wages paid in respect of statutory notice of:-

(1) Holiday entitlement

(2) Employers pension contributions to employees pension

(3) Other allowances (payments) in respect of provision of a motor vehicle."

It is, in our judgment, quite impossible to spell out of that application any complaint that the dismissal itself was an invalid dismissal, and that wages or at least pension contributions should have continued from January 1992 for a period or periods thereafter.

It seems to us that the issue is quite clearly defined to one of identified deductions arising out of a dismissal in January 1992 and it is a specific complaint about the make-up of the sum of £4081.48 which was paid. And that, if one looks at the Industrial Tribunal decision, is how they saw it and how they proceeded to deal with it. Their decision sets out the fact of dismissal on 23 January 1992, the finding of the appeal panel, the payment and then proceeds to consider and decide the point in this way at paragraph 4 of the reasons:

"4. .... Our conclusion is that the sum of £4081.48 did not amount to wages and there cannot therefore be any question of a claim in relation to a deduction therefrom. `Wages' is a term defined in s.7 of the Act. The House of Lords in Delaney v Staples [1991] IRLR 191 decided that monies in lieu of notice do not fall within that definition. In our view the sum of £4081.48 was compensation for wrongful dismissal not wages. Wages would accrue during the currency of notice which was actually given. In the present case no notice was given. Notice cannot be given retrospectively. The sum paid as a result of the decision on appeal was therefore something other than wages."

So they disposed of the appeal on the basis that they were considering, and only considering, the sum of £4,081.48 and decided that that was not wages and therefore they had no jurisdiction. And as we understand Mr Jones, if there was a dismissal and this sum was paid as compensation for wrongful dismissal and not wages, he does not dispute that the conclusion they reached as a matter of law was a correct one and therefore, to that extent the Tribunal's decision was not in error.

But what he says, and we return to this, is that there was no dismissal and so, the whole premise for the decision falls away and what the Tribunal should have done was to make some finding or given some decision which reflected the fact that Mrs Jones had not been dismissed at all.

In support of the argument that she had not been dismissed at all, he has referred us to the Whitley rules, to the Authorities own rules relating to disciplinary matters. His arguments can be gleaned from his Notice of Appeal and they are to the effect that, no employee of the Authority was empowered to dismiss Mrs Jones outside the parameters of the disciplinary procedures and that within those procedures Mr Heppleston, who is the manager who purported summarily to dismiss Mrs Jones, was not empowered to dismiss her. The Authority's procedures required her to be cautioned or subject to status quo working arrangements, and the failure to comply with these procedures invalidated the dismissal.

That brief summary of the points now raised, shows that in order to examine them it would be necessary for the Tribunal to examine in detail the terms and effect of the Whitley rules and this authority's own rules; how they worked together; the authority of the manager concerned and whether his authority was subsequently ratified; whether the authority itself, as Mr Jones contends, took the decision to dismiss Mrs Jones and so on.

It is self-evident that in order to investigate such issues, the Tribunal would have to hear evidence. They would have to make findings of fact; they would have to consider, in detail perhaps, arguments of law based upon the meaning and effect of the various rules. And perhaps also consider from a factual point of view whether it really can be contended that Mrs Jones in the circumstances, remains undismissed to this day since that is the logical conclusion of Mr Jones's arguments on her behalf; and if not, whether at some point, she must be treated as having been dismissed albeit leaving open the argument as to whether that dismissal had been in accordance with the rules or not and if not in accordance with the rules, what financial consequences followed from that.

This analysis demonstrates to our mind that, given the way that the matter was put before and considered by the Tribunal, it is quite impossible for us as an Appeal Tribunal to grapple with those issues. It must be said, in accordance with the principles which this court has laid down, that that is an entirely different case from the one considered by the Industrial Tribunal and one which involves the consideration of facts which are not before this Tribunal as an appellate tribunal and which would have to be found by the Industrial Tribunal. Accordingly, it is not permissible for Mr Jones, on behalf of his wife to raise these points before us on appeal. In Secretary of State for Employment v Newcastle-upon-Tyne City Council [1980] ICR 407, this court laid down that it was wrong in principle to allow a party to an appeal to seek to raise new issues where those issues required further investigation of the facts.

We believe on analysis that these new points are an alternative way about complaining about the manner of Mrs Jones's dismissal. That was very much in the arena, whilst the complaint of unfair dismissal remained alive but disappeared when that complaint was withdrawn. We understand why (as he frankly said) Mr Jones regrets having made the decision to withdraw that complaint, but that is what he did and we are afraid that that is what he is stuck with. We do not think it is open to Mrs Jones now to attempt to re-open some of the issues which would have been relevant on that application by the route of this appeal.

It may be of consolation to Mrs Jones for us to say this. We think it is fairly apparent that whether or not the manner of the dismissal followed the rules, if the Industrial Tribunal had accepted the findings of the Appeal Panel, that is to say, if they had accepted that there were grounds for dismissing Mrs Jones because she had failed to follow instructions and the relationship of employer and employee had broken down, then even if she had succeeded on the points which are now raised the likelihood of her obtaining any or at least any substantial compensation for the dismissal, was slim.

For the reasons that we have given this appeal must be dismissed.