United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A FREER (Solicitor) Legal Officer GMB, National Legal Department 22-24 Worple Road London SW19 4DD


 


MR JUSTICE MORISON: The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Mr Haddon wishes to make against the unanimous decision of an Industrial Tribunal held at Ashford, in Kent, which dismissed his application of unfair dismissal which he had brought against his former employers, Van Den Bergh Foods Ltd.

The dispute between the parties arose out of an awards presentation which took place on 26 January 1998. The issue between them was whether, after that event was over, Mr Haddon was to return to carry out his duties on the late shift.

The Industrial Tribunal described this as a very sad case, involving the dismissal of a person who had just been celebrating his 15 years of good service with the company and expressed great sympathy for the Applicant in the course of making their findings.

The Notice of Appeal raises, as it seems to us, two questions. The first is a general question as to the proper approach of Industrial Tribunals to the words of section 98(4) of the Employment Rights Act 1996. Mr Freer will wish to submit that the Tribunals have put a gloss on the words by, effectively, asking whether no reasonable employer would have made the decision concerned, applying therefore, in a sense, what is known in the law as the 'Wednesbury Test' of reasonableness. It is his submission that the Tribunals should apply the Statute without any such gloss and, in that context, he would wish to submit that the Industrial Tribunal appeared to consider that it had to apply the range of reasonable responses test and that, in applying the law, the Tribunal misunderstood what was said in a case which can be identified simply as the Iceland decision.

Those submissions are of importance and we regard this as a good occasion on which to review the approach to section 98(4) and will welcome the assistance of the Respondents on that point.

The second point in the Appeal is simply a perversity argument, not based on findings which are not supported by evidence or findings which ought to have been made on the evidence, but based on the Tribunal decision as it stands. They have, so it is argued, arrived at a decision which does an injustice to the Applicant and they should not have arrived at that conclusion.

We express no view about the merits of either of these two points at this time as this is an ex parte hearing. It is sufficient, merely having identified them, to describe them as 'arguable'.

Because it contains an important element I think it should be marked P for President. It will be a case which will take a whole day to argue and the sooner it is listed the better. No notes of evidence will be ordered. I would like to thank the parties for their PHD forms, which we have taken into account in making the directions.