United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1369_95_0706

Appeal No. EAT/1369/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7th June 1996

Before

THE HONOURABLE MR JUSTICE BUTTERFIELD

MR L D COWAN

MISS A MADDOCKS OBE

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MR MARK THYER          APPELLANT

UNIROSS BATTERIES LIMITED          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant PAUL EPSTEIN

(of Counsel)

Messrs Powells

Solicitors

7 - 13 Oxford Street

Weston-super-Mare

Avon

BS23 1TE

For the Respondents NO APPEARANCE BY OR

ON BEHALF OF THE

RESPONDENTS


 


MR JUSTICE BUTTERFIELD: This is an appeal from a reserved decision of the Bristol Industrial Tribunal, whereby on 16th November 1995 the tribunal found on the hearing of a preliminary issue that the appellant had not been continuously employed for two years and was therefore disqualified from bringing a complaint of unfair dismissal.

The appellant's case was that he had received oral notice of termination of his employment taking effect on 8th July 1995, which provided him with the necessary two years continuous employment from the date he started work, which was 9th July 1993. The respondent, however, submitted that the appellant's contract was terminated orally without notice on 8th June 1995, that the termination took effect on that day and that in those circumstances the appellant did not have the necessary qualifying period of two years continuous employment.

The Industrial Tribunal having rehearsed those two contentions, then concluded that it was unnecessary for it to resolve the competing submissions so far as the facts were concerned. The tribunal held that by reason of Section 55(5) of the Employment Protection (Consolidation) Act 1978, the effective date of termination would be on the expiration of a notional period of statutory notice of one week only, which would be 15th June 1995 and thus the appellant would not have the qualifying period to present a complaint, which ever way the tribunal determined the facts.

In our judgment, the Industrial Tribunal made a clear error of law in deciding that even if the appellant had been dismissed with notice, it was necessary to calculate the effective date of termination of this employment by reference to Section 55(5). Section 55(4) provides that:

"(4) ... "the effective date of termination" -

(a) in relation to an employee whose contract of employment is terminated by notice, ... means the date on which that notice expires."

Thus, if the appellant's arguments as to the facts had been accepted, it was not necessary to consider Section 55(5) at all.

For those reasons, this appeal succeeds and is allowed. The respondents have recognised the inevitability of that conclusion by letter to the Employment Appeal Tribunal dated 14th May 1996 in which they indicate that they do not intend to resist this appeal, and that the matter should be allowed to go back to the Industrial Tribunal for the proceedings to continue.

We therefore direct that the matter be remitted to the Industrial Tribunal to determine on the facts whether notice was in fact given, and if such notice was given, when that notice expired. We simply direct that it be tried by a tribunal to be selected by the Regional Chairman. We do that because it may be that the matter can come on earlier, than by reserving it to this particular Chairman. On the other hand, if it is convenient for the matter to come before him, we see no reason why it should not. We leave it on that basis.