United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1379_95_0205

Appeal No. EAT/1379/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 2 May 1996

Before

HIS HONOUR JUDGE PETER CLARK

MR S M SPRINGER MBE

MR T C THOMAS CBE

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MS C J ARBUTHNOTT          APPELLANT

MOUNT CARMEL SCHOOL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant IN PERSON

For the Respondents MR D BURN

Solicitor

Islington Council

Town Hall

Upper Street

London

N1 2UD


 


JUDGE PETER CLARK: Following 17 years' continuous service as a teacher in Waltham Forest the Appellant left to take up an appointment as acting deputy head at Mount Carmel Girls School, which is in the London Borough of Islington. Employment at Mount Carmel commenced on 1 January 1994 and terminated on expiry of a fixed term contract on 31 August 1994.

She brought proceedings for unfair dismissal against the London Borough of Islington and the Governors of Mount Carmel School. By an interlocutory order of the Stratford Industrial Tribunal (Chairman: Mr G. Flint, sitting alone) following a hearing held on 16 August 1995, the London Borough of Islington were dismissed from the proceedings and the complaint continues against the Governors only. There is no appeal against that order.

At the same hearing the Chairman made a further interlocutory order in respect of a second preliminary issue before him, formulated in a letter from the Industrial Tribunals to the parties dated 8 June 1995 in this way:

"2. Whether the Applicant has sufficient service to bring a claim against the Governors of the Mount Carmel School."

He ordered that determination of that issue be adjourned pending the House of Lords ruling in the case of Regina v Secretary of State for Employment, Ex parte Seymour-Smith. The Court of Appeal decision in that case is reported at [1995] ICR 889.

It is against that adjournment order that this appeal is brought by Ms Arbuthnott.

The position on the pleadings is that the Respondent admits dismissal by reason of redundancy, but denies that the Appellant has 2 years' continuous service for qualifying purposes under Section 64(1)(a) of The Employment Protection (Consolidation) Act 1978. If that is right, the Appellant is precluded from pursuing a complaint of unfair dismissal under the Act.

To that Ms Arbuthnott replies that she is entitled to rely upon her full 18 years' continuous employment for qualifying purposes by virtue of the provisions of the Local Government (Modification) Order 1983. Not so, say the Respondents; those regulations permit her to count the full period for the purpose of calculating her redundancy payment entitlement, and that is what happened in her case, but they do not, say the Respondents, affect the statutory computation of continuous service for the purposes of Section 64(1)(a) of the Act.

That issue remains unresolved as a result of the Chairman's adjournment order, and the reason for that is the potential impact of the final outcome in Seymour-Smith.

In Regina v Secretary of State for Employment, Ex parte Equal Opportunities Commission [1994] ICR 317, the House of Lords held that the qualifying period provisions of the 1978 Act for part-time employees were unlawfully discriminatory as being contrary to Article 119. The Court of Appeal in Seymour-Smith have decided that the 2 year qualification period under Section 64(1)(a) of the Act is similarly contrary to Article 119, subject to the question as to whether compensation for unfair dismissal is "pay" within the meaning of Article 119. A division of the Employment Appeal Tribunal presided over by Morison J, has firmly concluded that it is in Mediguard Services Ltd v Thame [1994] ICR 751, but the Court of Appeal in Seymour-Smith regarded the point as unclear. (See Neill LJ 940E). Accordingly it is that issue which remains to be determined by the House of Lords in Seymour-Smith, their Lordships having declined to rule on the point in the EOC case in relation to unfair dismissal compensation as opposed to redundancy pay.

We return to this appeal. The power of an Industrial Tribunal to postpone or adjourn a hearing is expressly provided for in Rule 13(7) of The Industrial Tribunals Rules 1993. Appeals against orders allowing or refusing an adjournment lie to this Appeal Tribunal on a point of law only. That means, in practice, that the Appeal Tribunal must find that the Chairman has exercised his discretion perversely, in the sense that no reasonable Industrial Tribunal Chairman, properly directing himself, could make the order appealed against. (See Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778). Recognising that this is the test Ms Arbuthnott has urged on us that the Chairman failed to take into account certain relevant factors which, if correct, would show unreasonableness under the Wednesbury rules.

Having considered that submission we accept Mr Burn's contention that the factors which she lists may be relevant to the merits of her case, but not to the Chairman's order to adjourn the hearing of the preliminary issue.

Having asked ourselves whether this adjournment order was perverse we have no hesitation in saying that it was not. If the House of Lords in Seymour-Smith effectively outlaw the two year qualifying period under Section 64(1)(a) then this application for compensation for unfair dismissal will proceed to a hearing on its merits. The dispute as to the true meaning and effect of the 1983 Order will be rendered academic. We cannot say that it was a wholly wrong exercise of the Chairman's discretion to await the outcome of Seymour-Smith.

In those circumstances, we must dismiss this appeal and in doing so we emphasise that we are deliberately not expressing any view, first as to the strength of the arguments on the preliminary issue yet to be decided, and secondly as to the merits of Ms Arbuthnott's complaint of unfair dismissal, nor indeed any breach of contract claim which she may wish to add by way of amendment to her Originating Application.