United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR OLANREWAJU (Representative)


 


JUDGE PETER CLARK: This is an appeal by the applicant before the London (North) Employment Tribunal, Mr Vytelingum, against that tribunal's decision, promulgated with extended reasons on 3rd September 1998, following a three day hearing held on the 5th-7th August 1998, dismissing his Originating Application presented on 15th January 1997.

He was employed by the respondent Trust as a senior clerical officer from 28th March 1988 until his dismissal for alleged misconduct on 16th October 1996. An internal appeal against dismissal was rejected on 13th March 1997.

In his Originating Application he complained only of unfair dismissal. Thereafter on 9th April 1998 the appellant submitted further complaints by way of a proposed amendment to his Originating Application claiming (1) racial discrimination, (2) discrimination, (3) bullying, (4) harassment, (5) unfair dismissal, (6) victimisation, racially discriminated harassed, bullied for being an accredited TGWU shop steward, (7) breach of contract, (8) not being given a correct notice entitlement. He further maintained that there was still outstanding pay awards due to him for the year 1995/96 and 1996/1997. Leave was granted by a Duty Chairman for those amendments.

On 28th April 1998 the appellant's representative, Mr Olanrewaju, requested further leave to amend the Originating Application to include these claims: (1) trade union activities, (2) particulars of discrimination, failing to promote Mr Vytelingum in his employment from 1988 contrary to ss. 1(1)(a) and 4(2)(b) of the Race Relations Act 1976 and victimising him contrary ss. 1(1)(a) and 4(2)(b) of the Race Relations Act 1976, claims under written terms and condition of service, breach of contract, holiday pay, and pay award increments.

The tribunal did its best to resolve what issues were for determination before them.

As to the application for leave to amend dated 28th April 1998 it was contended that leave was given for those amendment to be made. However, the tribunal sitting on this case could find no reference to leave being granted on their file, and it is recorded in paragraph 6 of the tribunal's reasons that the appellant could not produce to the tribunal the letter from the Employment Tribunal granting leave. We are told today by Mr Olanrewaju that in fact he handed up the letter which he claimed the tribunal had sent to him. That apparent conflict cannot be resolved at this ex parte preliminary hearing.

The tribunal focused principally on the claim of unfair dismissal and for reasons given dismissed it.

Before us today the appellant takes two points. The first is that, in paragraph of the tribunal's reasons no determination, and subsequent award, was made on his breach of contract claim, which was undoubtedly before the tribunal as a result of the amendment contained in the letter of 9th April 1998, for which leave was given by the Duty Chairman. We are told that the additional four weeks pay in lieu of notice mentioned in paragraph 29 has not been paid by the respondent. Whether or not that is so, we of course cannot say. If it is, then it is arguable that the appellant has raised a point of law in that the tribunal has failed to adjudicate on an issue which was before it, namely the breach of contract claim.

The second point relates to paragraph 37 of the reasons. Again no determination is made on that part of the appellant's claim which was advanced in the application to amend dated 28th April 1998. It is unclear to us at the moment whether or not this Employment Tribunal, chaired by Mrs Don, granted the application for leave to amend in the form set out in the letter dated 28th April 1998, if in fact leave had not been earlier granted.

In this confusing state of affairs, the only sensible course for us to take is to adjourn this preliminary hearing with the following directions:

(1) A copy of this judgment is to be sent to the tribunal Chairman, Mrs Don, and to the respondents for their comments. Upon receipt of those comments I shall give a further direction for the conduct of this appeal.

(2) Mr Olanrewaju to put in a draft amended Notice of Appeal for me to consider, which sets out those two points. I will not give you leave at this stage because I have no seen it yet. This is to be done within fourteen days of today's date.