United Kingdom Employment Appeal Tribunal

APPEARANCES

 

EAT/1050/99 For the Appellant	MR N BOOTH (of Counsel) Instructed By: Mr R Arthur Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW
EAT/1054/99 For the Appellant	MR M CHAPMAN (of Counsel) Instructed By: Mr R Turner Messrs Taylor Willcocks Solicitors Essex House 12-13 Essex Street Strand London WC2R 3AA


 


MR JUSTICE CHARLES: We are concerned with two appeals. The Respondent to both appeals is Welwyn Hatfield District Council. The two Appellants are a Mr Baker and a Mr Burton. The appeals come before us today by way of a Preliminary Hearing pursuant to this Tribunal's Practice Direction.

1. The appeals are against a decision of an Employment Tribunal sitting at Bedford, the Extended Reasons for which were sent to the parties on 29 July 1999. The decision given by the Employment Tribunal was a common decision in respect of both applications, and one can well see therefrom why that was the case and why the two appeals are being dealt with together before this Tribunal.
2. The decision of the Employment Tribunal was that the two Appellants were not unfairly dismissed. That decision does not deal with the additional claim made by both Appellants in their IT1s for wrongful dismissal, that is their breach of contract claims.
3. No review was sought in respect of that omission and both Appellants seek to include that omission as part of their appeal on the basis that the failure of the Employment Tribunal to consider that element of their respective claims and therefore to give any reasons for in effect dismissing it, or for not dealing with it, is an error of law which attracts an appeal. We accept that that is reasonably arguable.
4. The other points relating to the appeals are that an important aspect of the reasoning of the Employment Tribunal, which one can see in particular from paragraphs 6, 7 and 11 of their Extended Reasons, was that they concluded that an Employee Handbook was included within the contracts of employment of the two Appellants and this (amongst other things) provided expressly that:

"Whole Time Service Officers above Grade Scale 6 must devote their whole time service to the work of the Council and shall not engage in any other business or take up any additional appointment without the express consent of the Council."

5. As we read the Extended Reasons the Employment Tribunal concluded that that provision remained a term of the contract, notwithstanding the fact that what is described as the "Purple Book" in the Extended Reasons was overtaken by the "Green Book".
6. We have not had the advantage of being shown either of those books, or the written terms of the contracts of employment if there are any included in any documents outside those books. However, on the information that we have we accept that a reasonably arguable point of law exists as to whether the provision in the Employment Handbook that we have set out above was a term of the Appellants' contracts of employment.
7. If the Employment Appeal Tribunal that hears this case considers that the documentation demonstrates clearly what the contractual position is and support the conclusion of the Employment Tribunal it would be open, as we see it, to that Tribunal to reflect that decision in any order they might make as to costs.
8. A further point is raised in respect of this point, namely that the evidence of a Mr Gray, who carried out the relevant investigations, was that the Employee Handbook was not incorporated within the contracts of employment of these two employees. That, as we understand it, is said to be relevant on two bases. First, as to what the terms and conditions were and second, as to the thought processes of the employer in dismissing these two employees.
9. During the course of argument before us, I raised the point as to how Mr Gray's evidence should be dealt with. I suggested that it might be appropriate for the Appellants to identify what they say Mr Gray said and to invite the Respondents to agree that.
10. On reflection it seems to me that that is likely to cause more problems than it saves and the correct course would be to invite the Chairman to provide his Notes of Mr Gray's evidence, which can then be considered in the light of any Witness Statement and the other documents that Mr Gray put in.
11. I will however, also direct that the Appellants are to identify to the Respondents what they say the effect of Mr Gray's written and oral evidence was and its relevance to their grounds of appeal.
12. The skeleton argument put in on behalf of Mr Baker, but not that put in on behalf of Mr Burton, raises a further point, namely that the Employment Tribunal applied the wrong test as to reasonable responses, or reasonableness. That is based on a submission that the Employment Tribunal erred in law in not following the approach set out in Haddon v Vandenbergh Foods Ltd [1999] IRLR 672. It would in fact have been impossible for the Employment Tribunal to have had regard to that decision because it did not exist at the relevant time.
13. It follows from that (a) that the representatives of the parties put before the Employment Tribunal the law as it was then generally accepted to be having regard to decisions of the Court of Appeal and other decisions, and (b) that the Employment Tribunal applied the statute, having regard to the guidance in the existing authorities.
14. Thus the point based on the Haddon case, for very understandable reasons, was not put below and in effect this ground of appeal is one in which the Appellant (and I shall assume both Appellants) wish to rely on a new point of law, or a development which explains or clarifies the existing the law.
15. That it seems to me gives rise to a number of problems as to whether or not they should be allowed to amend their Notices of Appeal to include such a point, given the underlying authority relating to Court of Appeal decisions that you are not, or generally not, entitled to bring an appeal out of time based upon a new decision which is at odds with the basis upon which the decision appealed against was reached (see for example Biggs v Somerset County Council [1996] ICR 365 at 374 D/E).
16. Other points that arise in respect of the Haddon case are whether or not it was correctly decided and whether it is a decision which this Tribunal should follow, having regard to existing Court of Appeal authority.
17. We are aware that the "Haddon point" is a very live point in Employment Law and it is one with which this Tribunal will be dealing sooner rather than later. Whether it will do so in these appeals is an open question.
18. It seems to me that the correct way of dealing with the "Haddon point" is to accept that, as of today's date, an application for leave to amend the Notices of Appeal has been made to include this additional point and, I will direct that draft amended Notices of Appeal to include this point be served on the Respondents within 14 days.
19. I will further direct that the issues that arise as to whether or not those amendments should be allowed and this Tribunal should consider the "Haddon point" should be dealt with by the Tribunal that deals with the substantive hearing.
20. An alternative, which is open to the Respondents, would be for them to make an interlocutory application but it seems to me that the convenient course would be for the "Haddon point" to be a point that is a live point on the substantive hearing.
21. We give this case (i.e. the two appeals together) a time estimate of a day. As to categorisation, at the moment we will categorise it as A. However, if the "Haddon point" has been dealt with before the appeal comes on, which might well be the case, we will indicate to the Listing Department that this case could then be listed as a Category B case.