United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON And MR MORTON (of Counsel) Under the EMPLOYMENT LAW APPEAL ADVICE SCHEME (ELAAS)


 


JUDGE CLARK: The Appellant Mr Jones was dismissed from his employment as a teacher at Hampstead School with effect from 31 August 1997. Following his dismissal he presented a complaint to the London North Employment Tribunal raising the following issues:

(1) whether he was dismissed for an inadmissible reason relating to Health and Safety, contrary to section 100 of Employment Rights Act 1996,

(2) whether he had been discriminated against on the grounds of his disability,

(3) whether the Respondent was in breach of contract by removing specified subjects from his teaching duties,

(4) what were the terms and conditions of his employment, in particular, when did his period of continuous employment with the Respondents commence,

(5) had there been unlawful deductions from his payment on termination in respect of discretionary redundancy payment.

1. The Tribunal found that the Appellant was continuously employed, first by the Inner London Education Authority (ILEA) and then by subsequent authorities in October 1981. Although he had done some teaching work with the ILEA from 1976, there had been a break in continuity between May and October 1981. The period of continuous employment starting in October 1981 terminated with his dismissal on 31 August 1997. He was a general supply teacher. He was a qualified teacher of science, mathematics and design technology and could be and was called on to substitute for other teachers in respect of any subject.
2. At the relevant time there was one other permanent supply teacher at Hampstead School, a Mr Irving. In March 1997, the school governors resolved to cut expenditure. They were responsible for the school's budget. One decision taken was to reduce the number of permanent supply teachers from two to one. As a result, both the Appellant and Mr Irving were invited to apply for the single post; only Mr Irving did so. He was interviewed and got it. The Appellant was dismissed with effect from 31 August 1997. In the event he was not required to work after 23 June. He did not appeal against that decision.
3. The Tribunal in a reserved decision with extended reasons, dated 22 February 1999, following a six day hearing and a further day's deliberation in Chambers, resolved the issues before them in this way:

(1) The Appellant was not dismissed for a reason relating to Health and Safety; the reason for his dismissal was redundancy.

(2) The dismissal was unfair for want of prior consultation. However, following a proper consultation period which the Tribunal held would have been one month, he would still have been dismissed. Accordingly, compensation for unfair dismissal was limited to one month's net pay.

(3) That although he had suffered from tinnitus since 1991, he did not have a disability within the meaning of section 1 of the Disability Discrimination Act 1995, but if he did, he had not suffered less favourable treatment under section 5(1) and the Respondent was not in breach of its duty under section 6 to make reasonable adjustments so as to found a complaint under section 5(2) of the Act.

(4) There was no breach of contract in the duties assigned to him.

(5) His period of continuous employment commenced in October 1981. The remaining terms and conditions of his employment were set out, as the Tribunal found them, in paragraph 43 of their reasons.

(6) In paragraph 2 of their reasons, the Tribunal found that his complaints about deductions from pay related to a discretionary redundancy payment and in those circumstances there was no obligation on the employer to pay any additional sums.

The Appeal

4. We have heard both from Mr Jones in person and from Mr Morton under the ELAAS pro bono scheme. We shall deal first with the discursive grounds of appeal developed by Mr Jones. In short, they raise questions of fact which were all dealt with, we think, during the six day hearing before the Employment Tribunal.
5. There is only one matter in the course of his submissions which gave us cause for concern and that was in relation to the Tribunal's finding that he was not disabled within the meaning of section 1 of the Act. However, even if he were to succeed on appeal in showing that he was so disabled, we are quite satisfied that the Tribunal's findings, that he was not less favourably treated, for the purposes of section 5(1), and secondly, that there was no failure on the part of the Second Respondent to make reasonable adjustments under section 6, are bound to stand, and in those circumstance, no purpose would be served in allowing the matter to proceed to a full hearing on the issue of whether or not he was disabled within the meaning of the Act. Accordingly, we dismiss all the grounds of appeal presently set out in the Appellant's Notice of Appeal.
6. Mr Morton has raised three further points in support of the appeal. Two of them relate to the Tribunal's findings as to the Appellant's terms and conditions of employment. One, in relation to the proper notice period which is said at paragraph 43(g) of the reasons to be three months notice, and secondly, in relation to the question of holiday pay; the Tribunal found that he was not entitled to paid holiday. Mr Morton has sought to argue that in view of the working time directive and consequent domestic legislation, that was an erroneous conclusion.
7. We are quite satisfied that neither of these points, either in relation to the proper notice period under the contract, nor in relation to the question of paid holidays, was raised before the Employment Tribunal and in light of the recent decision of the Court of Appeal in Jones v Governors of Burdett Couts School (1998) IRLR 521, we find no exceptional grounds on which to allow these new points to be taken for the first time on appeal.
8. That leaves one final point. Mr Morton submits that at paragraph 2 of the reasons the Tribunal fell into error in declining to entertain a claim of unlawful deductions. On the basis that the complaint here related to an underpayment by the employer of the final redundancy compensation under the terms of the Appellant's contract. For example, we have been taken to the First Respondent's letter to the Appellant dated 24 September 1997, in which it is said that Camden would exercise its discretion in favour of removing the upper weekly pay limit to be found in the Employment Rights Act 1996 and then proceeded to calculate the appropriate payment on the basis that the Appellant's continuous service commenced on 2 May 1984.
9. We think in view of the Tribunal's finding that continuous service began in October 1981 that it was arguable that the Appellant had received less than his proper entitlement. The real issue here, is whether or not the Tribunal erred in law in treating the scheme for enhanced redundancy payment as being non-contractual, or at any rate, as one which gave no right to a payment for the purposes of section 13 of the Employment Rights Act 1996.
10. It is on this single limited point that we shall allow the matter to proceed to a full appeal hearing. For that purpose, we direct that the Appellant lodge, within 14 days, marked for my attention, amended grounds of appeal relating solely to that issue. We have no doubt that Mr Morton will assist in the formulation of that ground of appeal. I make it absolutely plain that if any further grounds are sought to be reintroduced in the amended pleading, I shall strike them out.
11. On this limited ground the matter will proceed to a full appeal hearing listed for two hours, Category C. There will be exchange of Skeleton Arguments not less than 14 days before the date fixed for the full appeal hearing, copies of those Skeleton Arguments to be lodged with this Tribunal at the same time. There are no further directions, in particular, there is no requirement for Chairman's Notes of Evidence. It will be a matter for the parties to agree a small bundle of documents relating solely to the unlawful deductions point which we have allowed to proceed to a full hearing.