United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N BOOTH (of Counsel) Instructed By: Messrs Thompsons Solicitors Congress House Great Russell Street London WC18 3LW


 


JUDGE ALTMAN: This is an appeal from a decision of the Employment Tribunal sitting at Bedford on 6 November 1998 in which they decided that the Appellant was not unfairly dismissed. She appeals and the matter is considered today at a preliminary hearing to determine if there is a point of law which merits consideration at a full hearing before the Employment Appeal Tribunal.

1. Whilst this was a claim for unfair dismissal the essential part of the Tribunal's decision was dealing with the issue as to whether or not the Appellant was dismissed. She had served for some 19 years as an employee of the Respondents when on 27 May 1998 she gave notice of termination of her employment to take effect on 3 July 1998. The Respondents decided, in the way it was expressed in the decision of the Tribunal at paragraph 2(e), that they would allow "the Appellant not to work her notice" and at 2(i) it appeared that having received that in writing, the Appellant was in fact very upset at being required to leave. Nonetheless she complied with the requirement. The main grievance thereafter that the Appellant had was that she had been deprived of working her notice and taking what was described as a joyous farewell of her colleagues, some of whom she had worked with for many years.
2. The arguments on both sides were set out in the decision of the Employment Tribunal. The Employment Tribunal then set out their findings, first that there was no dismissal. Secondly they found that there was no breach of contract in requiring the Appellant to leave early. Thirdly the Employment Tribunal found that if there was a breach of contract, then it was not "accepted" by the Appellant. Fourthly they simply dismissed the application. But they did not in their conclusions identify those arguments of the Respondents, which they accepted and those, which they rejected and that may give rise, it seems to us, to a matter that is worthy of argument.
3. Furthermore, the question as to whether or not the Respondents were entitled to require the Appellant to remain away from work during her notice is a matter which stands at the crossroads of two lines of authority. On the one hand there are those cases which say that depending upon the specific terms of the contract of employment and other factors such as the need to keep skills alive, there are cases where it is a breach of contract not to give work to an employee during a period of notice. And on the other hand there is the line of authority, which says that an employer is not bound to provide work for an employee.
4. In considering that issue, it seems to us there is an argument that the Employment Tribunal did not advert to the facts necessary primarily to form the basis of their judgment, nor did they set out their reasons for preferring one line of authority to another. Finally, in using the phrase that all that the Respondents were doing was "allowing the Appellant not to work", the question, it seems to us, arises as to whether that was an appropriate way of describing a requirement to stay away from work imposed on an employee against her will.
5. Accordingly, we have resolved that this matter should proceed to appeal on the issue as to whether or not the Employment Tribunal erred in law in concluding that there was no dismissal. The question as to whether or not it was fair or not does not appear to have been canvassed in any real sense. Accordingly, we permit this matter to proceed to a full hearing. It will be listed for half a day in Category C and it does appear necessary, although we recognise that it is a considerable imposition on the Chairman, to request that he provide his Notes of Evidence of the Appellant and of Mr Clarke and to include with those notes any witness statement which stood as part of their evidence before the Employment Tribunal.