United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1273_95_2106

Appeal No. EAT/1273/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 June 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MISS J W COLLERSON

MR P DAWSON OBE

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MRS M LINEHAM          APPELLANT

CLEVELAND COUNTY COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY OR

REPRESENTATION ON BEHALF OF THE APPELLANT


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mrs M Lineham. The appeal is against the unanimous decision of the Tribunal held in Middlesbrough on 6 October 1995. The Respondents to the case were Cleveland County Council.

The Tribunal unanimously decided that there was no jurisdiction to entertain Mrs Lineham's claim for breach of contract against the Council. The Extended Reasons for the decision were notified to the parties on 26 October 1995. A Notice of Appeal was served on 20 November. It was drafted by Mr Lineham on his wife's behalf.

The position today is that a message was received in the Tribunal this morning that Mr Lineham, who has represented his wife, not only in these proceedings, but also in earlier proceedings (which I shall mention shortly) is not able to attend. His wife is ill. He did not ask for the case to be adjourned when he left the message. We shall therefore proceed to deal with it on the papers before us, which we have read and considered.

The claim in this case has to be considered against the background of earlier proceedings. Mrs Lineham brought a claim for unfair dismissal against the Council. The proceedings were by way of an Originating Application presented on 5 August 1994. She claimed unfair dismissal from her employment as a part-time bus escort for handicapped children, which she said she had done from about 1979 until 28 April 1994.

The case was contested by the Council. Initially they said that there had been dismissal due to ill health. When the matter came to be heard before the Industrial Tribunal in Middlesbrough on 11 January 1995, the case was argued on a different basis. The Tribunal came to the unanimous decision that Mrs Lineham had not been dismissed. She was not therefore entitled to a redundancy payment or to claim unfair dismissal.

That case found its way to the Employment Appeal Tribunal. A preliminary hearing of Mrs Lineham's appeal took place before a Tribunal chaired by His Honour Judge Smith QC on 19 May 1995. After hearing Mr Lineham, on behalf of his wife, the Tribunal decided, in a Judgment of the same day, that there was no arguable question of law in the case and that the appeal should be dismissed. They upheld the Industrial Tribunal's conclusion that they had no jurisdiction, because there had been no dismissal.

That was followed by an application by letter to have the decision on the appeal reviewed. By an order of 15 June 1995 the applications for review were refused.

On 23 June 1995, Mrs Lineham presented another Originating Application to the Industrial Tribunal. In that she claimed breach of contract, but it is apparent from reading the papers that she was bringing forward the same case, as had been previously unsuccessful in the Industrial Tribunal and the Appeal Tribunal; namely that she had been dismissed from her job as a bus escort for handicapped children with the Cleveland County Council.

The County Council responded to the case in their Notice of Appearance dated 2 August 1995 by referring to the previous proceedings and saying that they refuted the claim of breach of contract, because it was based on an assertion in direct contradiction to the finding of the earlier Tribunal that the relevant letters did not amount to letters of dismissal. It was submitted that the application did not disclose any cause of action.

When the case came for a second time before the Industrial Tribunal at Middlesbrough on 6 October 1995, the Tribunal was differently constituted as to lay members, but had the same Chairman, Mr Myers. Mr Lineham appeared for his wife. The Tribunal did not find it necessary to call on the Solicitor for the County Council to address them. The Tribunal found that the County Council's submission in their Notice of Appearance that there was no jurisdiction and no cause of action to be correct.

In the Extended Reasons the Tribunal set out the history of the matters (which I need not repeat as I have already summarised it). They referred to section 131 of the Employment Protection (Consolidation) Act 1978, as activated by the 1994 Statutory Instrument on Extension of Jurisdiction. They said that this claim did not arise and was not outstanding on the termination of Mrs Lineham's employment, within the meaning of that section and the Article in the Statutory Instrument. They said this:

"... Mrs Lineham has not been dismissed; there is therefore no termination of her employment and the contract claim therefore cannot proceed. Even if there is jurisdiction this Originating Application is presented out of time and we are not minded to extend time. When asked finally to explain and state explicitly what is the legal basis of this claim, Mr Lineham said:

`I say that the Industrial Tribunal has bestowed on itself jurisdiction to find out why Mr Leach exceeded his authority'.

He went on to say:-

`Mr Leach has not given satisfactorily why he authorised Mrs Jameson to send the letter of 26 May 1994. It would only be fair to go on and find out what is true.'"

The Tribunal concluded in paragraph 4:

"4 We cannot discern from all of Mr Lineham has said either in writing or orally today before us that there is a legal basis upon which this claim can go ahead. There is no jurisdiction to proceed. This application is alleged by the respondents to be not well founded in law. We agree. As we can only act on the jurisdiction that Parliament gives to us we must dismiss this claim. We cannot find that there is a basis today in law upon which we can act. This application therefore is dismissed unanimously for want of jurisdiction."

We have considered the grounds of appeal which Mr Lineham submitted with his Notice of Appeal. We are unable to find anywhere in them any ground for holding that the Tribunal made an error of law in saying that it had no jurisdiction.

The position is quite simple. Mr Lineham, on behalf of his wife, is seeking to re-litigate under the heading of "Breach of Contract" the same issue which he has already litigated under the claim for unfair dismissal and redundancy. That issue is the critical one whether or not Mrs Lineham was dismissed by the Council.

The Tribunal, which heard the case first, said that she was not dismissed and therefore could not claim a redundancy payment. That was upheld by this Tribunal. The basis of the claim for breach of contract is dismissal. It is the same issue. A party is not entitled to bring another case out of time in order to litigate again an issue already decided against the party on the facts. There is no error of law in the Tribunal saying, that there is no jurisdiction to hear this case.

We therefore dismiss this appeal.