United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M GRIFFITHS (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE CHARLES: This is an appeal which comes before us by way of a preliminary hearing, the issue for us being to consider whether or not the appeal raises points of law that are reasonably arguable. The parties to the appeal are a Mr Lovell and Frances Clarke Ltd.

1. The appeal is against a finding of an Employment Tribunal, through a Chairman sitting alone. His decision is contained in Extended Reasons, which were sent to the parties on 11 January 1999. He had earlier sent Summary Reasons on 25 November 1998.
2. The decision was that the Appellant was not wrongfully dismissed and thus that the Respondent company had not made any unlawful deduction from his wages.
3. Today, Mr Lovell has had the benefit of being represented by Mr Griffiths under the ELAAS Scheme. We are also very grateful to him for his assistance. It is fair to say that, without his assistance, we may have reached a different conclusion.
4. We have concluded that this appeal does raise points of law that are reasonably arguable.
5. Very briefly, Mr Lovell was employed as a security guard and an incident which is described in fairly full terms in the Extended Reasons took place following a lady shopper reporting to Mr Lovell that she had seen another shopper possibly stealing a toy. It is not appropriate for us to go into that matter further at this stage.
6. Mr Griffiths put before us that there were four points that Mr Lovell would wish to argue on this appeal and which were reasonably arguable. Also he helpfully stated that he would put them into an Amended Notice of Appeal and we will take up that offer. But briefly, I identify the points now in a slightly different order to that in which he put them to us.
7. The first point he makes is that the Chairman in his Extended Reasons in large measure adopted the approach to the determination of whether a dismissal is unfair, rather than to the question whether a dismissal is wrongful. Mr Griffiths put to us that the test or approach relating to wrongful dismissal is one which requires the Court, or Tribunal, to determine as a mixed question of fact and law, whether there has been a fundamental breach of the contract.
8. He goes on to say, and we accept, (a) that it is reasonably arguable that the Chairman did not fully appreciate that test, or did not explain fully that that was the test he was applying, and (b) that it is reasonably arguable that such error infects the fact-finding exercise performed by the Chairman.
9. In addition to that point, he also points to the following, which are separate points but also rely to some degree on that initial point, namely an assertion that the Chairman reversed the burden of proof and as to that he refers to paragraphs 7 and 19 of the Extended Reasons. If this was treated as a free-standing point we doubt that we would have been persuaded that it was reasonably arguable but taken with the first point we think it should remain.
10. He also asserts that it is reasonably arguable that the Chairman failed to take into account certain relevant facts. As to that he refers to paragraphs 13 and 14 of a skeleton argument prepared by a trainee solicitor who was acting for Mr Lovell before the Employment Tribunal and correctly pointed out that, on the face of it, those paragraphs do not entirely accord with paragraph 9(viii) of the Extended Reasons. The point here was put on the basis of perversity and/or failure to take into account certain relevant facts relating to the construction and effect of the security operating procedures of Woolworths. Again, in our judgment, primarily as a subsidiary point to the main point we have identified, this is reasonably arguable.
11. The final point that is taken is that the Chairman in this case either should not have sat alone, or should have explained why he was sitting alone, having regard to the provisions of section 4 of the Industrial Tribunals Act 1996. As to this we were particularly referred to the decision of this Tribunal in Sogbetun v Hackney Borough Council [1998] ICR 1264, which we were told is the latest of three cases on the topic all decided by the President. Having regard to that decision, in our judgment the issues as to whether or not the Chairman should have sat alone, and the lack of reasons explaining why he was sitting alone, raise reasonably arguable points on this appeal, having regard to that decision.
12. Accordingly, we shall permit this appeal to proceed on the basis of those points. We are confident that Mr Griffiths will put them more elegantly in the notice of appeal he has promised us.
13. We give a direction which is directed to Mr Lovell and the Respondent company to produce and if practical agree the bundle that was before the Employment Tribunal, but also we will make a direction that the Employment Tribunal produce the bundle that they have.
14. We put this case in Category B with a time estimate of one day.