United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M DUGGAN (of Counsel) White & Barker 20 Brunswick Place Southampton SO15 2AQ


 


MR JUSTICE LINDSAY: We have before us as a preliminary hearing the appeal in the matter of Mr Maloney. Mr M. Maloney was an erstwhile employee of the Respondent, Hampshire Training & Enterprise Council Ltd. There was a Reserved Decision by the Chairman sitting alone, Mr P. Robjant, after a hearing on 30 July 1996 and his decision was promulgated on 30 September 1996.

Mr Maloney was dismissed on 24 November 1995 and it was an important question, raised as a preliminary question, to determine what was his proper starting point in relation to consideration of relevant employment for the purposes of his claim for wrongful dismissal, for unfair dismissal and for a statutory redundancy payment?

The reasoning of the Industrial Tribunal Chairman is set out in the Reserved Decision to which we have referred and, it is accepted by Mr Duggan (who appears before us for Mr Maloney, and who also appeared below for Mr Maloney) that there is an initial point that he has to get over if other points of appeal are to have any prospect whatsoever of success and that point can be described as the "Emanation of State point".

It is accepted in the appeal before us that it had been conceded below that the Respondent, Hampshire Training & Enterprise Council Ltd, was not an emanation of the State as that was understood by the advisers of Mr Maloney at the time; that was thought to be correct in law at that time. Since the decision of the Chairman, promulgated on 30 September 1996, there has been reported in The Times of 16 December, a case called National Union of Teachers v The Governing Body of St Mary's Church of England Junior School, which Mr Duggan has very properly drawn to our attention. He has also referred us to Kumchyk v Derby City Council [1978] ICR 1116 and Russell v Elmdon Freight Terminal Ltd [1989] ICR 629.

How far is the Applicant before us, the Appellant Mr Maloney, to be allowed to raise a point on appeal, a point which was not only not raised below but which was conceded in the opposite sense below? Any Court hearing appeals has to conduct a balance between the desirability of litigation being finite and being brought to as reasonably early an end as is practicable, with justice being done in the particular case. That balance is, conventionally, in cases of appeal where the question is raised whether fresh matters can be raised, decided against the introduction of new points unless a compelling case is made for their fresh raising.

Here, there is, in our view, no such compelling case. It would seem, so far as we can judge from the decision of the Chairman, that the question of emanation of State, which was not raised below and, as I have indicated, was in fact, conceded in the opposite sense, if it were to be raised would require a fresh examination of the facts. Moreover, the point cannot be described as wholly new. The decisions that are referred to in the decision of the Court of Appeal in 16 December in the National Union of Teachers case date back to 1991.

We see no case for allowing the emanation of State point to be raised in these circumstances and, that being the case, the other points which Mr Duggan would have wished to raise do not arise.

Accordingly, we see that this is not a matter that should go to a full hearing but rather should be dismissed at the threshold.