United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J TAYLER (of Counsel) Bridge McFarland 19 South Street Mary's Gate Grimsby DN31 1JE
For the Respondents	MR J BOWERS QC Wilkin Chapman PO Box 16 Town Hall Square Grimsby DN31 1HE


 


JUDGE PETER CLARK: These are appeals by seven Applicants before the Hull Employment Tribunal sitting on 2 – 4 September 1998 against that Tribunal's decision, promulgated with Extended Reasons on 19 October 1998, dismissing their complaints of unfair dismissal against their former employers, the Respondent, Global Shipping Services Ltd. The issue was whether or not they were unfairly dismissed by reason of redundancy.

The appeal came before a division of this Appeal Tribunal presided over by Mr Justice Holland for preliminary hearing on 24 March 1999. On that occasion the Appeal Tribunal allowed the matter to proceed to a full hearing on the basis of a skeleton argument prepared by Mr Tayler, who then appeared on behalf of the Appellants.

Initially the Respondent put in a standard form Answer, relying on the Employment Tribunal's reasoning. Thereafter, by a letter dated 3 June 1999, the Respondent's Solicitors applied for leave to amend the Answer to add a contention that in respect of paragraphs 4, 5, 9 and 11(b) of Mr Tayler's original skeleton argument, points were there raised which were not taken by the Applicants' Trade Union representative, Mr Ibbett, below.

The Appellants' Solicitors did not oppose leave to amend the Answer, but, by a letter of 24 June, requested the Chairman's Notes of Evidence to deal with the new case to be advanced on behalf of the Respondent. Their instructions from Mr Ibbett were that the points raised in the skeleton argument had been raised below.

Leave to amend the Answer was granted by Order of the Registrar dated 28 June 1999. However, by letter of the same date the Registrar refused the application for Chairman's Notes, an application which was by then supported by the Respondent's Solicitors by their letter to the Registrar dated 27 August.

The, by now joint application for Chairman's Notes was renewed and again placed before the Registrar. By a letter dated 1 September she replied as follows:

"As the hearing is on 16 September the President considered your extremely late request and does not consider Chairman's Notes necessary. If you wish to pursue the matter further you must raise it as a preliminary point at the hearing. However, if the hearing is then adjourned you should be aware of the question of costs being raised."

The substantive hearing of the appeal was listed before a division consisting of Judge Hicks QC, Mr Tuffin and Mrs Vickers for today. Unfortunately, due to illness, Judge Hicks is unable to sit. I have a full list in the other court sitting today. Consequently the full hearing of the appeal is adjourned for that reason.

In the circumstances I have been asked by Counsel to deal with the application still outstanding for Chairman's Notes. For that purpose I have thought it helpful to sit with the lay members originally assigned to the case, who have had the opportunity to fully consider the papers.

It seems to all of us that where there is an issue as to whether or not points have been raised below, bearing in mind the consistent approach of this Tribunal and the Court of Appeal, more particularly expressed in the case of Jones v Governing Body of Burdett Coutts School [1998] IRLR 521, it is almost essential that that factual matter should be resolved by reference to the Chairman who sat on the original Employment Tribunal.

As Mr Tayler submits it is not necessary to have the full notes of evidence taken during the three-day hearing. What is required is for the Chairman to comment by reference to his notes, not only of the evidence but also by reference to the submissions made on behalf of the parties on the contention raised in the amended Answer.

We shall accordingly direct that the Chairman be asked for his comments. For that purpose he should be supplied with the following documents:

The original skeleton argument prepared for the preliminary hearing and appearing at pages 27 – 33 of the Employment Appeal Tribunal bundle;

a copy of the Respondent's Amended Answer dated 25 August 1999;

a copy of a statement prepared in relation to this point by Mr Buckle, the Respondent's Solicitor with Exhibits dated 10 September 1999;

a copy of the statement dated 13 September 1999 of Mr Ibbett who appeared on behalf of the Applicants below and

a copy of this judgment.

Once the Chairman's comments have been received the matter can be re-listed for a hearing which will occupy the time of the Tribunal for one full day. Copies of the Chairman's comments will, of course, be supplied to both parties. On this basis the appeal is adjourned.