United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MR R M SHEPHERD (Representative) Management & Personnel Services St James' House Frederick Road Edgbaston Birmingham BIS 1JJ


 


JUDGE J HICKS QC: We propose to direct that this appeal proceed to a full hearing on two specific grounds which, broadly speaking, follow the two grounds actually stated in the original Notice of Appeal, but in a reformulated shape.

However, the Appellant, Mr Pearson, in presenting his case on this preliminary hearing, advanced at least a broadening and probably an actual addition of a number of other points, and we think it right to give our reasons for not allowing those further matters to proceed to a full hearing and, in that sense, for dismissing the appeal insofar as it rests on those grounds, notwithstanding that they themselves have not been put in terms of a formal Notice of Appeal. I shall deal with those points first and then come back to the formulation of the grounds on which we do send this matter forward to a full hearing.

I shall deal with those matters by reference to pages 28 A to 28 C of the bundle, which are headed "Outline of case of Respondent case", but have been taken to be a summary of Mr Pearson's, the Appellant's, case so far as the conduct of the hearing before us is concerned.

Head 1, which is accompanied in effect by head 7, so I take them together, is concerned with the fact that, as we understand it from Mr Pearson, his contract contained a number of provisions about termination for redundancy which entitled him, as he says, to a number of benefits if there was a termination by reason of redundancy in the form of extended notice and the benefits of what is called "premature retirement" which, in practical terms, is largely concerned with pension rights.

The point Mr Pearson makes, as we understand it, is that the compensation awarded by the Tribunal did not match those rights. This, in our judgment, is a misconceived point. Mr Pearson plainly was not dismissed on any ground related to redundancy. He was, as the Tribunal found in his favour, unfairly dismissed, but the reason why he was unfairly dismissed related to conduct and, therefore, his rights were the rights which the statute gives to compensation for unfair dismissal in such circumstances. What contractual rights he might have had, had he been dismissed for redundancy, cannot affect the decision, so we reject that ground of appeal so far as it is before us.

His head 2, which again is coupled with another, namely head 8 - and therefore we are dealing with both at the same time - makes, as we understand it, three points.

The first is that he did nothing to warrant his dismissal. That, however, is the very ground on which the Industrial Tribunal found in his favour and upheld his complaint of unfair dismissal and cannot be an error on their part.

The second point is that he objects to the Tribunal's refusal to award reinstatement or re-engagement, and that comes back to his introductory point that he had done nothing to warrant his dismissal. But the misconception there, in our judgment, is that when the Tribunal comes to consider reinstatement and re-engagement it is no longer concerned solely, or indeed primarily, with whose fault caused the termination of the contract; it has already dealt with that at the stage of finding unfair dismissal. It is concerned, among other things (and this is what chiefly concerned this Tribunal), with whether, in terms of relationships between employer and employee, it is practicable to order reinstatement or re-engagement. The Tribunal went into that and found that the breakdown of relationships was such that it was not practicable and that, in our understanding, was a perfectly proper consideration for them to take into account and was not, in that context, a matter of apportioning blame between the parties.

In connection with that point Mr Pearson also says that at that stage, when it came to the question of reinstatement or re-engagement, he was willing to accept the new conditions of the contract to which he had earlier objected and that indeed may well be so, but the Tribunal's reasons for not awarding reinstatement or re-engagement, as I have already said, were not concerned with matters of that kind, they were concerned with the breakdown of relationships, as they found to be the case, and the impracticability in those circumstances of enforcing reinstatement or re-engagement. So there is nothing in that point.

Mr Pearson's third matter under this head concerns the reduction of the compensation awarded by the Tribunal. I shall come back to that at the end because that, or at least a particular form of that, is one of the grounds on which we propose to direct that the matter proceed to a full hearing.

Head 3: Mr Pearson's document takes the point first of all that, in relation to the Tribunal's treatment of his claim for breach of contract in paragraph 63 of the Decision, there is a finding that, insofar as that complaint related to being required to put in extra hours in invigilation of examinations, the issue had been raised by him in the County Court action and determined against him and the Tribunal therefore found that that point was res judicata; that seems to us to be a perfectly proper conclusion. Mr Pearson's complaint there is that the County Court was concerned only with a specific period of two weeks, whereas his complaint related to much longer periods, but insofar as the invigilation point is concerned that cannot, in our judgment, in any way make the Tribunal's decision erroneous. If the County Court had considered and dealt with the question whether invigilation was a matter that could be required under the contract, then that is the end of the matter. In dealing with head 3, head 5 goes with it and for that reason I say nothing separate about head 5.

There are other points, however, arising in relation to paragraph 63 of the Decision and the conclusion reached by the Tribunal as to the breach of contract claim, to which again I shall return at the end, because there is an aspect of that as to which we propose to direct that the matter proceed to a hearing.

In head 4 of the document Mr Pearson raises an allegation of bias against the members of the Tribunal, but after discussion he told us that he did not wish to pursue that point and we therefore say no more about it.

That deals with all the numbered points except 9 which reads:

"What is really going on in colleges under this new styled management?"

And there is a reference to a press article (I think) or a magazine article which is in the bundle but, as is clear on its face, that raises issues entirely outside the jurisdiction of this Tribunal and is not a matter which raises any arguable ground of appeal.

Those therefore are our reasons for rejecting this appeal insofar as it goes outside the ambit of two specific points which we think should be dealt with at a full hearing. Since there is to be a hearing we say absolutely nothing about the merits one way or the other of those grounds because that will be dealt with at the hearing, but we have formulated them in such a way as to raise, in our view, arguable points of appeal. As I have said, they broadly correspond to the two heads of the original Notice of Appeal, but whether or not they exactly cover the same ground, our direction is that the hearing shall be confined to the grounds formulated by us. I will read them. I do not expect them to be taken down by dictation because I shall not go that slowly and they are in a document which I shall hand down and which, I trust, is legible notwithstanding that it is in my own handwriting. They are as follows:

(1) The Tribunal erred in law in that in dealing in paragraph 63 of its Decision with the Applicant's claim for breach of contract it failed to make findings as to relevant terms of the contract of employment, namely:

(i) what were the hours which the Applicant could be required to work and

(ii) whether he could be required to attend parents' evenings;

or as to what would amount to breaches by the employer of such terms, before reaching conclusions as to whether there were any breaches of those terms.

(2) The Tribunal erred in law in finding, or assuming, in paragraph 74 of its Decision that a refusal by the Applicant, if still employed, to "accept the new contractual regime" by 1 September 1995 would have afforded grounds for a fair dismissal and would have led by a fair procedure to a fair dismissal.

On those grounds alone we direct that the appeal proceed to a full hearing. If there are any directions which either party wishes to give we will consider them, but on the face of it it seems to us that those are pure points of law which can be argued perfectly well on the face of the Decision and need no further material.