United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A SENDALL (of Counsel) Messrs Harvey Ingram Owston Solicitors 20 New Walk Leicester LE1 6TX
For the Respondent	MISS J WOODWARK (of Counsel) Messrs McKenzie Bell Solicitors 19 John Street Sunderland SR1 1JG


 


JUDGE PETER CLARK: In this case we have before us an appeal by the Respondent employer against a decision of the Newcastle Industrial Tribunal sitting on 2 July 1997, promulgated with Extended Reasons on 9 October 1997, that the Applicant employee was automatically unfairly dismissed because she had engaged in trade union activities within the meaning of Section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992. Secondly, there is a cross-appeal by the employee against the Tribunal's finding that she had contributed to her dismissal to the extent of 60 per cent.

The Appeal

The principal points taken in the appeal are, first, that although the Industrial Tribunal directed itself correctly that the burden of proving an inadmissible reason for dismissal lay on the employee, she having completed less than two years qualifying service at the date of dismissal, the Industrial Tribunal went on to place the burden of proving the reason for dismissal on the employer (first decision reasons, paragraph 9). Secondly, it is submitted that an inference of trade union discrimination could not properly be drawn from the evidence adduced before the Tribunal.

We think that both points are arguable, and we shall allow the appeal to proceed to a full hearing. Cases under Section 152 raise often difficult questions of fact and law. See Speciality Care Plc v Pachela [1996] ICR 633.

Cross Appeal

The complaint here is that in paragraph 2 of the remedies decision, promulgated with full reasons on 14 November 1997, following a hearing held on 16 October 1997, the Tribunal observed that the remedies decision should be read with the earlier liability decision dated 9 October 1997, and add:

"On reaching that [liability] finding the Industrial Tribunal also found that the Applicant had contributed to the extent of 60% to her dismissal."

The difficulty with that observation is that nowhere in the liability decision and reasons is there any mention of a 60% contribution finding, nor any reasons given for such a finding.

Accordingly the decisions taken together are arguably defective in failing to give proper reasons for the contribution finding. See Meek v City of Birmingham District Council [1987] IRLR 250.

In these circumstances we shall allow the cross-appeal to proceed to a full hearing.

Chairman's Notes

Having heard submissions from Mr Sendall on behalf of the employer, we stand over any ruling on the question of Chairman's Notes, leaving it to Counsel to discuss whether or not there is any need for such notes. The application may be renewed in due course.

The case should be listed for half a day, Category C. Skeleton arguments to be exchanged between the parties not less than 14 days before the date fixed for the full appeal hearing and copies of those skeleton arguments to be then lodged with this Tribunal in the usual way.