United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mrs M Douglas (Representative on behalf of the Appellant)
For the Respondent	Mr David Brunnen (of Counsel) Messrs Hill Dickinson Davis Campbell Solicitors Pearl Assurance House Derby Square Liverpool L2 9XL


 


JUDGE JOHN BYRT QC: This is an appeal against the decision promulgated on 12 September 1997 of an Employment Tribunal sitting in Liverpool and by that decision the Tribunal held that Mr Douglas, the employee had not been dismissed for asserting a statutory right but for incapacity and therefore it found that the dismissal was not unfair. Mr Douglas appeals that decision and he has been represented by his mother Mrs Douglas, if I may say ably.

The facts are that Mr Douglas was employed by the Respondents for a period of time between the 10 May 1995 and 13 December 1996 as a warehouseman. In September 1996, he became ill. The Respondents' case is that already at that time they had concern as to how Mr Douglas was fulfilling his job. During his illness Mr Douglas noticed that the Respondents were not making the usual deductions from his salary by way of being a contribution towards the employer's pension scheme. He raised the issue with the Respondents and it is his contention that it is because he did so, that the Respondents decided to dismiss him. Indeed, they did by a letter dated the 6 December dismiss him with effect from the 13 December. The reason they gave in a veiled reference to capacity was his suitability for the job.

On 20 January 1997, Mr Douglas took out an Originating Application before the Employment Tribunal alleging unfair dismissal. He also alleged a breach of contract and the particulars he gave under that head were that the company dismissed him without regard to its own disciplinary or grievance procedures.

The unfair dismissal claim was struck out as Mr Douglas had not been employed for the requisite period of time under section 108 of the Employment Rights Act, but an amendment was made to the IT1 to the effect that the dismissal was due to the assertion of a statutory right namely, to make it a claim under section 104 of that Act.

The Employment Tribunal heard the case in June and July of 1997 and they made a finding that the reason for Mr Douglas's dismissal related to his capacity and absence from work and that it had nothing to do with his challenge to his employers about the pension arrangements. They therefore dismissed his claim for unfair dismissal.

Mr Douglas then appealed to the Employment Appeal Tribunal alleging that this was a perverse finding. As is customary, the case came up for a preliminary hearing before this Tribunal on 3 April 1998 and the Tribunal presided over by His Honour Judge Butter QC, decided that the case in perversity was unarguable and as a result refused leave for the case to proceed on that basis, but in considering the case, they queried whether the Employment Tribunal ever gave their mind to and made a decision in relation to the second limb of Mr Douglas' claim as set out in the IT1, namely that the Respondents were in breach of contract because he had been dismissed without regard to their own disciplinary and grievance procedures. The Employment Appeal Tribunal considered it was arguable that if in fact the matter had been raised before the Tribunal and they had failed to make a decision on that point, they had misdirected themselves in law. They accordingly gave directions, first that the Chairman's notes relating to this particular issue, should be obtained. What has been produced are the closing submissions of the parties before the Tribunal. They make no reference to his procedural point.

Directions were also given for an affidavit to be sworn by James Boyd who had represented Mr Douglas before the Employment Tribunal. The point he was asked to address was whether this question of the breach of contract had been raised before the Tribunal. He did provide an affidavit. This indicates that he has very little recollection either of the facts of the case or of the legal points which were covered. However he said that as a result of having discussions with Mr Quigley, the solicitor member of ELAAS who represented Mr Douglas before the Employment Appeal Tribunal on 3 April of this year, he was not aware that the breach of contract point relating to the setting up of the pension scheme had ever been raised as a breach of contract point.

The third direction the Employment Appeal Tribunal gave was that the Notice of Appeal should be amended and the Chairman of the Tribunal asked Mr Quigley to assist with the formulation of the amendment. The amendment made did not specifically deal with the breach of contract which was alleged in the IT1. Instead it related to the failure of the Respondents to set up the pension scheme for Mr Douglas. Mr Brunnen has appeared before us today on behalf of the Respondents. He says that this was not the amendment the Employment Appeal Tribunal had in mind on 3 April, namely an amendment which would flush out the alleged breach of contract referred to in the IT1. The amendment which was made, raised an entirely new point which had not been raised or argued before the Employment Tribunal. For that reason he says that the Employment Tribunal had not covered it in making its decision as set out in the extended reasons.

We accept that submission. The amendment does raise a new point, separate from that which was set out in the IT1 and as a result, it was of course not dealt with in the extended reasons of the Chairman. There quite plainly was evidence about the muddle relating to Mr Douglas' pension arrangements, but that was raised in the context of his claim under section 104 of the Act and not as a discreet contract point on its own, and therefore it is not surprising in our view that the issue does not appear in the Chairman's note of the closing submissions of the parties or in the extended reasons.

It is not appropriate to talk about fault in such a situation. Mr Douglas, litigant in person, prepared the originating application himself and was represented for the most part by his mother. But what about the responsibility of the Tribunal below in this context?

So far as the Tribunal is concerned, it is clear law as set out in the case of Mensa -v- East Hertfordshire NHS Trust [1998] IRLR 531 that the Tribunal has no duty to dig around the facts of the case brought before them by an applicant in order to find points that might be made on his behalf against a respondent. In this particular instance, there is no doubt that everybody's attention was focused upon the pension problems in the context of a claim under section 104 and for that reason we do not think it surprising that the Tribunal did not of its own volition raise the issue as a discreet contract point which Mrs Douglas would now wish to argue on behalf of her son.

The position which now results so far as this Tribunal is concerned is a difficult one. We are here to determine points of law raised before the Employment Tribunal. We have been asked to determine a point of law in which was not raised below and which in no way features as part of the Employment Tribunal's decision. Regrettable as this may seem to be, we have no alternative in the circumstances but to dismiss this appeal.