United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mrs Atkinson 14 Coltash Road Furnace Gree Crawley RH10 6JY


 


JUDGE PETER CLARK:

1. The Appellant, Mr James Atkinson, commenced these proceedings by an originating application presented to the London (South) Employment Tribunal on 23 June 1998. He complained of various matters against his former employer, the Respondent Woolworths Plc by whom he was employed at their Redhill store for some five years until he left in summer 1998. Those complaints are listed in box 1 of the originating application as follows:

Threat of alteration to contract of work;

Harassment;

Victimisation;

Breach of Contract by Woolworths Plc;

Right to receive pay on Medical grounds;

Constructive dismissal;

2. The claims were resisted by the Respondent. By an order promulgated on the 16 October 1998 a Chairman struck out all those claims, save for the complaint of constructive dismissal, under Rule 13(2)(d) of the Employment Tribunal Rules 1993.
3. On the 26 October 1998 the case was listed for a prehearing review. By a decision, promulgated with extended reasons on the 29 October 1998, that Tribunal, chaired by Ms C Taylor, found that the remaining claim of unfair constructive dismissal had no reasonable prospect of success and pursuant to Rule 7(4) of the Tribunal Rules of Procedure, ordered the Appellant to pay a deposit of £150, having satisfied themselves that he had the means to pay such a deposit. He had found fresh employment earning some £10,000 per annum.
4. However, no deposit was paid within 21 days of the order promulgated on the 29 October 1998, as required by rule 7(7), and by a further order dated the 25 November 1998 a Chairman struck out the remaining claim of constructive unfair dismissal under rule 7(7).
5. On 7 December 1998 the Appellant lodged his Notice of Appeal with the Employment Appeal Tribunal.
6. We observe that the Appeal was in time for the orders of the 29 October and the 25 November 1998, but not for the initial strikeout order dated 16 October. Consequently the appeal is limited to the latter two orders relating to the claim of constructive unfair dismissal.
7. It is important to appreciate the purpose and effect of the prehearing review procedure, which replaced the old prehearing assessment. At a Prehearing Review the Employment Tribunal does not determine the complaint. It's function is to form an opinion, without having heard the evidence, based on the submissions of the parties, as to whether the claim has no reasonable prospect of success. If the Employment Tribunal so finds the Applicant may continue with his claim, subject to payment of any deposit ordered by the Employment Tribunal. Here, the Appellant did not pay the deposit, consequently his claim was struck out under Rule 7(7).
8. Turning to the Employment Tribunal's reasoning in reaching their decision at the Prehearing Review, it was the Appellants case that by requiring him to produce medical certificates for any absences from work, the Respondent was then denying him his entitlement to statutory sick pay (SSP). That requirement was first imposed by a letter dated 30 March 1998 from Ms Sharon Issy, an Assistant Manager. In fact, following a grievance instituted by the Appellant, that instruction was withdrawn by a letter dated 8 June 1998. Meanwhile no deductions had been made from his sick pay. The question of sick pay had simply not arisen during that period. The Appellant then gave four weeks notice and left the Respondents employment on the 14 July 1998. We are told today that he had found another job and then handed in his notice.
9. Before us today in support of this appeal the Appellant is represented by his Grandmother, Mrs Atkinson, assisted by his Father who represented him below. Effectively Mrs Atkinson repeats the argument which was placed before the Employment Tribunal. She submits that under the statutory sick pay rules set out in a leaflet produced by the benefits agency the Appellant could not be asked to provide a sick note for the first seven days of absence for the purpose of entitlement to statutory sick pay. She therefore submits that the instruction initially given by Ms Issy in her letter of the 30 March breached the statutory code for entitlement to statutory sick pay, and indeed she submits Ms Issy was in breach of the Respondents disciplinary procedures in that she was guilty of gross misconduct defined by the employer in its disciplinary rules as, among other things, making a false declaration under the company's sickness scheme. Pausing there, we are quite satisfied that that relates to claims by employees for sick pay. It does not apply to Managers who are applying the company sick pay rules.
10. More to the point, we are quite satisfied, having read the handbook issued by the employer which formed part and parcel the terms and conditions of the Appellants employment, that in certain circumstances the company reserved the contractual right to require employees to supply a medical certificate for absences of less than seven days.
11. However, it goes further than that because following that letter the appellant instituted a grievance, as was his right under the company's grievance procedure, and the upshot of that procedure was a letter to him dated 8 June 1998 which indicated that the earlier instruction to provide medical certificates in the event of any absence for sickness was withdrawn. There was no question of statutory sick pay arising during the intervening period between 30 March and 8 June 1998, so that even if Ms Issy's instruction had been in breach of the terms of the contract, which we think it was not, then any such breach came to an end by the letter of the 8 June 1998.
12. In these circumstances, when the Appellant handed in his notice in the middle of June it cannot be said, in our view that there was then any breach let alone a repudiatory breach of contract on the part of the employer which prompted the Appellant to leave the employment.
13. We remind ourselves again of the test for employment tribunals at a Prehearing Review. The question is whether in their opinion the claim discloses no reasonable prospect of success. On appeal before us the question is whether the finding in this case that the claim enjoyed no reasonable prospect of success is a perverse finding, that is one which no reasonable tribunal properly directing itself could arrive at. Far from being perverse we think the conclusion which they reached was almost inevitable. It follows in these circumstances that this appeal discloses no arguable point of law to go to a full appeal hearing and consequently it must be dismissed.