United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J WAITHE (of Counsel) Sittingbourne Citizens Advice Bureau 17a Station Street Sittingbourne Kent ME10 3DU
For the Respondents	MR K AHMED (in person)


 


JUDGE PETER CLARK: The Appellant, Miss Jones, commenced these proceedings by an Originating Application in the form of a letter with enclosures, presented to the Ashford Employment Tribunal on 21^st November 1997.

1. By a Notice of Appearance, settled by solicitors, the Respondent resisted the claim in so far as it related to Unfair Dismissal and a claim for written reasons for dismissal, on the grounds that the Appellant had not completed two years continuous service. The dates of her employment with the Respondent were there then given as 18^th July 1996 until, confusingly, 1^st July 1997 in Box 5 and 1^st January 1997 in Box 7.
2. The matter came on for a preliminary hearing on the issue of whether the Appellant qualified for Unfair Dismissal and written reasons for dismissal protection before a Chairman, Mr G W Davis, sitting alone at Ashford on 11^th February 1998. The Appellant attended, together with Mr J Orpin, a friend, whom we are told was not permitted to represent her. The Respondent did not attend, but submitted written representations.
3. In a decision with extended reasons dated18th February 1998, the Chairman held that the Appellant was disqualified from the right not to be Unfairly Dismissed and to have written reasons for dismissal. A claim for unlawful deductions from wages was permitted to proceed to a full merits hearing, time for bringing that claim having been extended by the Chairman.
4. The hearing proceeded on the basis that it was for the Appellant to establish two years continuous service for the purposes of her claims for Unfair Dismissal and failure to give written reasons. The Chairman found that the Appellant commenced employment in July/August 1996 (we think that must be 1995 on both parties cases) and that she was dismissed by the Respondent to whom the business was transferred on 18^th July 1996, on about 29^th January 1997, when the Respondent asked for the return of the garage keys. Accordingly she had less than two years continuous service for the purposes of section 108 and 92 of the Employment Rights Act 1996 (the Act).
5. Against the decision in respect of Unfair Dismissal protection, this appeal was brought by a Notice, again in the form of a letter dated 1^st April 1998, from Mr Stiles of the Sittingbourne Citizens Advice Bureau whom the Appellant had by then consulted. The point taken in that letter was that the Appellant was not disqualified from bringing a complaint of Unfair Dismissal because she was contending that she had been dismissed for asserting her statutory rights under section 104 of the Act. There is no qualifying period where dismissal is for that inadmissable reason.
6. The appeal came before a division of this Tribunal presided over by Mrs Justice Smith for Preliminary Hearing on 21^st October 1998. In a short judgement delivered by Mrs Justice Smith the matter was allowed to proceed to this full hearing.

The Appeal

7. Mr Waithe takes two points on behalf of the Appellant, as appears from the Amended Notice of Appeal dated 17^th November 1998.
8. The first is that in declining jurisdiction to entertain the complaint of Unfair Dismissal, the Chairman overlooked section 108(2)(g) of the Act, which excludes a claim of Unfair Dismissal for asserting a statutory right under section 104 from the requirement for two years qualifying service.
9. We have considered the Originating Application and it seems to us that the claim under section104 is there sufficiently identified. Even if it is not, it goes to the Tribunal's jurisdiction, and as such the point can be taken for the first time on appeal. House v Emerson (1980) ICR 795, as explained in Russell v Elmondon Freight Terminal Ltd (1989) ICR 629.
10. Mr Ahmed, who appears in person before us, disputes that reason for dismissal. He says that the reason for dismissal related to the Appellant's conduct. That is the issue to be decided at a full merits hearing. He had no useful submissions on the jurisdictional point raised in this appeal.
11. In these circumstances we accept Mr Waithe's first submission. We shall allow the appeal and direct that the issue of Unfair Dismissal under section104 be determined on its merits by a fresh Employment Tribunal. That Employment Tribunal should consist of a full panel of three members.
12. His second point is that Chairman appears to have overlooked the Breach of Contract claim raised in the Originating Application. Again, that is apparent on the face of the Chairman's decision. Accordingly we shall direct that that issue also be determined at a full merits hearing. In so directing we bear in mind that the Chairman extended time so far as the unlawful deductions claim was concerned. It follows that had he addressed the Breach of Contract claim he would have made the same finding.
13. Accordingly our order is that the appeal is allowed. The complaint will proceed to a full merits hearing before a full panel at the Employment Tribunal to determine the issues of:

(1) Unfair Dismissal for a reason under section 104 of the Act,

(2) unauthorised deductions from wages,

(3) Breach of Contract.