United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


JUDGE J HICKS QC: We propose to order that this appeal goes forward to a full hearing. When that is the decision at a Preliminary Hearing it is not usual to give any judgment of any kind, because nothing should be said that may appear to prejudge the decision at the hearing of the appeal, but exceptionally I shall explain very briefly our reason for sending it forward so that the Appellant, Mr Lambert, may understand and have on paper that short explanation, because we think that unless he clearly understands the basis on which we are allowing it to go forward, it may be that he will not be able to do himself justice in presenting the matter.

The reason is that in dealing with this matter the Industrial Tribunal ruled, and record that ruling in paragraph 5 of their Reasons, that the hearing before them should be limited, and in particular they ruled that the reasons for Mr Lambert's redeployment from his school into what was called the Support Services pool and his complaints about that, were irrelevant to the issues before them and they went on to say:

"The principal reason for our so finding was that that decision [the decision to redeploy in 1991] had been the subject of 3 appeals by the applicant, all of which had been rejected; ..."

That was a reference to 3 stages of internal appeal or grievance hearings within the employer's organisation and it is relevant and perhaps important that it was before the third stage of that appeal procedure had been dealt with that the employers dismissed Mr Lambert. It is not for us (as I emphasise again) to prejudge any decision on this appeal, but it does seem to us to be at least arguable that when Mr Lambert was redeployed in 1991 there might have been a situation in which he could have regarded that as such a breach of contract as to entitle him to resign and to claim that his resignation in such circumstances was a constructive dismissal. He did not do that because he followed the internal procedures established by the employers by which that decision could be challenged, and it seems to us that it is at least arguable that an employee should not be prejudiced in his ultimate response to what he claims to have been wrongful conduct and possibly a fundamental breach by the employers if before deciding whether or not to treat the matter in that way by resigning he pursues internal procedures. If, before those procedures are complete and, therefore, before he has the final opportunity of making a decision, the employers dismiss him, then it seems to us that it is arguable, and that is all that we are concerned with at this stage, that the Industrial Tribunal dealing with the matter should not shut out of its enquiry the circumstances of the original action by the employers that set that train of incidents in place.

I make it clear that that is the only matter that we regard as being arguable on this appeal. In so far as Mr Lambert complains of the decisions of the Industrial Tribunal on matters which they did take into account and come to decisions on, namely the question whether the delays on the part of the employer were such as to make his dismissal unfair, whether when in the pool he was given a fair opportunity of consideration for alternative employment, and the circumstances surrounding the dismissal itself, in all those matters we see no error of law in the treatment of the matter by the Industrial Tribunal, but for the narrow and limited reason that I have tried to explain for Mr Lambert's benefit we direct that this appeal go forward to a full hearing.

I should add one separate but quite important point and that is, that in his Notice of Appeal and the documents in support of it Mr Lambert used the word "biased" and, as a result of that, the Chairman's comments were invited on the basis that, on the face of it, that was an allegation of misconduct in the sense of impropriety on the part of the Tribunal. Mr Lambert has made it clear that he did not intend the word "bias" in that sense; his appeal is straightforwardly an appeal on the basis of error of law, not of personal misconduct on the part of the Industrial Tribunal, and no such issue arises.