United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S STYLE (Legal Executive) Garstangs Solicitors 57 Bradshawgate Bolton BL1 1DU


 


JUDGE PETER CLARK: By an Originating Application to the Industrial Tribunal presented on 23rd December 1997 the appellant, Mr Yates, contended that he was offered and accepted the post of financial controller with the respondent Company in September 1997. It was arranged that he would commence work on 20th October. He thereupon resigned from his former employment.

On 9th October 1997 he received a telephone call from the respondents stating that they would no longer be employing him. He claimed that this amounted to wrongful dismissal and claimed damages for breach of contract.

A Chairman, Mr P A Morris, sitting alone at the Leeds Industrial Tribunal on 5th March 1998 held that, on the facts as agreed, this was a contract for employment and not a contract of employment and consequently the claim did not fall within Article 3(c) of the Industrial Tribunals Extension of Jurisdiction (England and Wales) Order 1994. He therefore did not entertain the complaint, adding that the damages recoverable would in any event be so limited as to be an ineffective remedy. That decision, with extended reasons, was promulgated on 23rd March 1998.

By a letter dated 21st April 1998, solicitors for the appellant applied for a review of that decision and drew the Chairman's attention to the decision of the Employment Appeal Tribunal in Sarker v South Tees Acute Hospitals NHS Trust [1997] IRLR 324, Keene J. presiding, which is, we think at any rate, arguably directly on point and favours the appellant's contention in this case.

The Chairman responded to that application by letter dated 5th May 1998 in which he pointed out that the Employment Appeal Tribunal decision in Sarker was made ultra vires, since this Appeal Tribunal did not then in fact have jurisdiction to entertain breach of contract appeals under either the Employment Rights Act 1996 or the Industrial Tribunals Act 1996. See Pendragon PLC v Jackson [1998] IRLR 17.

Whilst that observation may have been strictly correct at the time, Mr Style has of course drawn our attention to the Employment Rights Dispute Resolution Act 1998, and in particular s. 17(3) which not only restores the Employment Appeal Tribunal's jurisdiction to hear appeals in breach of contract cases, but also makes the position retrospective so that all earlier cases in which breach of contract appeals were determined are lawful and valid.

Before us today Mr Style relies on the Sarker judgment in support of the appeal. We think, at the very least, that it is arguable that the Industrial Tribunal was wrong in drawing a distinction in this case, between a contract for employment and a contract of employment, and consequently wrong to decline jurisdiction to entertain the claim.

We also add this. As to the Chairman's observations about the ineffectiveness of any remedy if the tribunal did have jurisdiction to consider the claim, Mr Style points out that the position with the respondent was a senior and well paid one, and it will be the appellant's case, if he succeeds in this appeal and subsequently achieves a finding of breach of contract, that he would have been, at common law, entitled to reasonable notice as an implied term of his contract of employment and that a reasonable notice would be as much as six months. The agreed package in this case was some £38,000 per annum, and on any view, if that claim were to succeed then the remedy would be far from ineffective.

Finally we shall direct that this appeal be listed for two hours, Category C. No further directions are necessary.