United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M GLAZIER (Representative) Employment Practice 17 Hartley Avenue Manchester M25 OAT


 


MR JUSTICE LINDSAY: We have before us as a Preliminary Hearing an appeal by Mr D A Dawber against the decision of the Industrial Tribunal at Bury St Edmunds on 25 November 1996, promulgated on 4 December 1996. On that occasion the Applicant, Mr Dawber, did not attend but he has been represented before us today by Mr Glazier.

The decision - which was in proceedings in which Mr Dawber, as former employee, was the Applicant, and his former employer, Molloy Group Services Ltd, was the Respondent - was that his application for unfair dismissal was dismissed as being outside the jurisdiction of the Tribunal and his application of breach of contract was dismissed, the Applicant having failed to show cause why such an order should not be made.

The position is that Mr Dawber had made an application by Form IT1 on 20 March 1996 claiming breach of contract and unfair dismissal. The Respondent employer had completed an IT3 form of Notice of Appearance, and so a contest was on. It is not in our papers, but it seems apparent from the Industrial Tribunal's reasoning that there had been served on Mr Dawber at some earlier stage a Notice to show cause why his claim for unfair dismissal should not be dismissed, the ground for that approach being that he, on the face of things, failed to satisfy the requirement of Section 64(1) of the 1978 Act of showing two year's continuous employment. Not only that had been the subject of a Notice to show cause, but also he had been required to show cause why his claim for breach of contract should not be struck out on the ground that it exhibited not a claim in contract but a claim in tort and therefore was outside the jurisdiction of the Industrial Tribunal. As we mentioned, he failed to attend before the Industrial Tribunal. Such submissions as had been put into writing, on his behalf, were considered by the Industrial Tribunal and it then concluded in its decision as we have just cited.

Nonetheless, notwithstanding that he had not attended before the Industrial Tribunal, on 30 January Mr Dawber dated a Notice of Appeal. It raises two grounds. The first is what one might call a "breach of contract ground". His IT1 had said that the employer had not returned Mr Dawber's equipment when collecting a vehicle. Mr Dawber had been an HGV driver. His employment had terminated and it seems that he had left some personal goods, possibly even pots and pans, in the vehicle, which he had been driving for the employer. His IT1 continues:

"The applicant wrote on several occasions to the respondent particularising his equipment with no response forthcoming. The respondent appeared at the applicant's home with most of his equipment on the 15th February 1996. The applicant claims breach of contract..."

He then goes on to say what the sum claimed was.

Leaving aside whether the facts there stated are true, and it might be said that they are very much contested on the part of the Respondent employer, there is no allegation there of any contract, express or implied, being a contract that the employer would return to Mr Dawber equipment that Mr Dawber had left in the employer's vehicle at the end of his employment. However, Mr Dawber, in his Notice of Appeal, relies on Section 131 of the 1978 Act, which is headed "Power to confer jurisdiction on industrial tribunals in respect of damages, etc, for breach of contract of employment". Sub-section 1 provides that the Minister might permit certain types of claim to be brought before an Industrial Tribunal and sub-section 2 tells one what sort of claims can so be brought. It begins:

"Subject to subsection (3), this section applies to any of the following claims, that is to say—"

and then it specifies a number of different types of claim, the common feature of each of which is that each has to be a claim in contract. Those sorts of claims can be heard before the Industrial Tribunal, but they have to be claims in contract.

Mr Glazier, before us, relies on the extension made by the Industrial Tribunals Extension of Jurisdiction Order 1994 which, at Regulation 5, adds yet further types of claim which can be made, but the Article begins by saying:

"This Article applies to a claim for a breach of a contractual term of any of the following descriptions—"

So one begins still looking only at claims in contract. One of those claims is (c), a term relating to intellectual property. That is defined as including copyright, rights in performances, moral rights, design rights, registered designs, patents and trade marks. Mr Glazier would have us accept that that gave the Industrial Tribunal the jurisdiction to hear claims based only on moral rights. That cannot be the case. It has to be observed that the words at the beginning are "for breach of a contractual term", and then there are particular descriptions.

If we thought it was at all likely that Mr Dawber could show a contract, express or implied, of the kind that he asserts then we would readily take the view that Mr Dawber had the ghost of a chance and could go forward to a full hearing, but not only do we see no contract sufficiently alleged but we are bound to say that we find it inherently unlikely that there was any such contract of the kind that Mr Dawber would have us believe is sufficiently alleged. It is easy enough to see that, as a matter of contract, an employer might impliedly have a term or even expressly have a term that at the end of a man's employment property entrusted to the man merely for the performance of his job, would have to be returned to the employer and directions given by the employer in that behalf would have to be obeyed. But it is hard to see why one should suppose that there should be a contract relative to things such as pots and pans and personal property left in a van or lorry at the end of a driver's employment. There would be no need to imply such a term that if it was the employee's own property it should be returned because that would be the ordinary effect of the law of tort.

What it comes to is that Mr Dawber was given the chance before the Industrial Tribunal of proving the existence of a contract of the kind that he alleged. He failed to take it. He did not turn up. We see no error of law on that ground.

There is another ground in the Notice of Appeal which Mr Glazier did not press before us, but which we ought, nonetheless, briefly to mention. The other ground on which Mr Dawber failed was that he failed to show cause why his claim should not be struck out as not having shown the necessary two years continuous employment. In his Notice of Appeal Mr Dawber relies on a decision of the EAT in a case called Street v Peacock (unreported) Case 217/96. At that stage the House of Lords had not ruled in the case of R v Secretary of State ex parte Seymour Smith. Since then, that case has been heard by the House of Lords and their judgment was given in March 1997 and is to be found at [1997] ICR 371.

The Seymour Smith case had been a case in which there was a challenge as to the validity of the introduction of a two-year term of continuous employment being required as a pre-condition of a claim in unfair dismissal. The position still is susceptible to change or to further pronouncement because the House of Lords, whilst reversing the Court of Appeal in part, has directed the matter to be taken up by the European Court of Justice. It is still at least possible that there will ultimately be found to be a case that at any rate in some circumstances, the two-year continuous service requirement should be found to be invalid.

In the Street v Peacock case, the EAT, hearing a similar appeal on a Section 64 point where, again, the matter came up to the EAT as an appeal from a preliminary point before the Industrial Tribunal, thought it right to permit the employee's case to be kept alive and then discussed what was the best way of keeping it alive. On the particular circumstances of that case they thought the best way of keeping the case alive was to direct that it should go to a full hearing. Obviously that it is not the only way in which a case can be kept alive. It could be kept alive by a decision being given against the employee but followed by a grant of leave to appeal to the Court of Appeal. Equally, it could be kept alive by a decision against the employee and the refusal of leave to appeal to the Court of Appeal but by the employee then seeking leave from the Court of Appeal.

In the circumstances of this particular case, where earlier there had been notices to show cause and a failure to attend, it seems to us that if it is right that Mr Dawber's claims should be kept alive against the possibility that the two-year rule is overturned, then the proper way of permitting that on the facts of this particular case is to refuse the matter to go to a full hearing and to leave Mr Dawber to take such steps by way of seeking leave to appeal as he might think appropriate. We do not encourage that course; on the contrary. But if Mr Dawber on advice or deciding for himself believes that there may ultimately be a ruling that the two-year requirement should be found invalid, well then, he is at liberty to keep his claim alive in the meantime by seeking from the Court of Appeal leave to appeal against our decision. But, given the procedural history of this matter, we would not think it right to take the course that was taken in Street v Peacock by directing a full hearing of the substance of the Applicant's case. Rather, as indicated, we refuse this matter to go to a full hearing before the Industrial Tribunal. It has come up to us only on a preliminary point from the Industrial Tribunal but we do not see it as right to send it back to the Industrial Tribunal for a full hearing; rather we dismiss the appeal and leave Mr Dawber to seek leave to appeal from the Court of Appeal, if, on advice, he thinks it right to keep his claim alive until the European Court of Justice has ruled in the Seymour-Smith case.