United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N BALL (in Person)
For the Respondents	MS P WALSH (Non-Practising Counsel) Messrs Osborne Clarke Solicitors Hillgate House 26 Old Bailey London EC4M 7HS


 


JUDGE PETER CLARK: The Appellant, Mr Ball, was employed by the Respondent, Prudential Corporation Plc as an Executive Sales Manager from 1 March 1996 until his summary dismissal without notice on the grounds of alleged gross misconduct on 26 February 1998.

On 27 March 1998 he presented an Originating Application to the Bristol Employment Tribunal complaining of unfair dismissal. He did not include a specific claim for damages for wrongful dismissal at common law. He contended in that pleading that he was dismissed for gross misconduct in circumstances where no misconduct had occurred. He gave no further particulars of his case.

The Respondent entered a full Notice of Appearance dated 17 April 1998, setting our the alleged gross misconduct and contending that the dismissal was fair.

A Notice of Hearing was sent to the parties fixing the case for a substantive hearing on 8 May. By letter dated 24 April 1998 the Respondent applied for a postponement of that hearing. The grounds for the application were, first, that a material witness would be overseas on that date, secondly the Respondent raised a jurisdictional issue. It was contended that the Appellant did not have two years continuous service for the purposes of s.108(1) of the Employment Rights Act 1996 ("the Act"). The Respondent's case was that the Appellant was dismissed without notice for gross misconduct and could not add the minimum notice period of one week so as to qualify for unfair dismissal protection under the Act. That is a reference to the combined effects of s.97(2)(b) and s.86(1)(a) and (6) of the Act. They asked for a preliminary hearing to determine the jurisdiction point as to sufficiency of continuous service.

The Appellant's solicitors responded by a letter dated 6 May 1998 to the Tribunal. They identified an issue as to whether or not the Appellant committed an act of gross misconduct. If he did, they argued that it may well be that the dismissal was fair and the length of service point then became irrelevant, if not, then he is entitled to add the one weeks' minimum notice provided for in s.86(1)(a). Either way they contended that there should be no preliminary hearing and suggested that the case be listed for two days for a full hearing.

The Tribunal responded by fax to the parties dated 7 May 1998. A Chairman ruled that the case would remain in the list for 8 May as a preliminary hearing, limited to the question whether the Appellant had the necessary two years service to bring his claim of unfair dismissal, and if not, whether the claim should be stayed pending the outcome of the Seymour-Smith case in the European Court of Justice. Although not material to the issues in this appeal we note that the European Court has now sent that case back to the House of Lords to determine the questions referred originally by the House to the European Court.

On 7 May the Appellant's solicitors faxed the Tribunal following the Tribunal's fax of that date, indicating that at the preliminary hearing they would rely on the representations contained in their letter of 6 May and would not be appearing in person at the hearing the following day.

On 8 May the preliminary hearing came on at Bristol before a Chairman, Mr A C Tickle, sitting along. The Appellant did not appear and was not represented in line with the indication given by his solicitors. The Respondent appeared represented by a solicitor, Mr Nathan. Evidence was led from Mr Colin Hughes, Field Sales Manager, who took the Chairman through the documentation in the case.

Based on that evidence, and having taken account of the Appellant's written representations contained in the solicitors letter of 6 May, the Chairman concluded as a fact that the Appellant was guilty of gross misconduct, for the reasons set out in his Extended Reasons dated 16 June 1998, and corrected by a certificate dated 26 June 1998. The Respondent was entitled to dismiss the Appellant summarily. Accordingly he could not add the week's notice provided for in s.86(1)(a) of the Act. The Appellant had less than two years continuous service. Accordingly, the claim was stayed pending determination of the Seymour-Smith case.

Against that decision the Appellant appealed. The matter came before a division of this Tribunal, Mr Justice Morison presiding on an ex parte preliminary hearing on 27 October 1998. In a judgment delivered by the President on that day, the appeal was allowed to proceed to this full hearing on three grounds:

(1) whether the correct procedure was followed by the Employment Tribunal in making clear the purpose of the hearing on 8 May;

(2) whether the Appellant could count as full weeks those weeks at the beginning and end of his employment in which he was employed as full weeks;

(3) whether for the purposes of computing the period of continuous service, the Appellant was entitled to add one weeks notice under s.97(2), read with s.86(1)(a).

Today, Mr Ball pursues all three grounds. It is convenient to deal first with ground (2). Prior to the change effected by s.20 of the Employment Act 1982, which came into force on 2 January 1983, the qualifying period of continuous employment was calculated in weeks. The period was 104 weeks under the Employment Protection Consolidation Act 1978. Under the then case law, a week could include part of a week worked. Thus, in this case, Mr Ball would have been able to include the whole of the first week worked and the last week, thereby achieving 104 weeks continuous service.

The effect of the change, brought about by the amendments first to the 1978 Act by the 1982 Act and now to be found in s.108(1) of the 1996 Act is to provide for a period of two years service ending with the effective date of termination of the contract. That period begins with the day on which he starts work, s.211(1). Thus, we are satisfied, unless the effective date of termination is extended from 26 February 1998 by virtue of s.86(1)(a) and 97(2) of the Act, the Appellant fails to show that he has completed a qualifying period of not less than two years continuous service under s.108(1).

We are satisfied that s.86(1)(a) must be read subject to s.86(6). There is no right to any notice where, as a matter of fact, the employer was entitled to summarily dismiss the employee at common law for gross misconduct. It is not enough that he simply asserts that he was entitled to summarily dismiss the employee, there must be a factual enquiry and finding as to that contention see Lanton Leisure Ltd v White and Gibson [1987] IRLR 119.

In this case the Chairman, sitting alone at the preliminary hearing, found that to be the fact, having heard evidence from one side only. On that basis he was entitled to conclude that the Appellant's period of continuous service could not be extended under s.86(1)(a) and 97(2).

The remaining question is whether that issue could be dealt with by a Chairman sitting alone at a preliminary hearing under Rule 6(1) of the Employment Tribunal Rules of Procedure 1993, and if so, whether as a matter of discretion the Chairman could properly do so, rather than adjourn the matter for hearing by a full Employment Tribunal.

We are satisfied that the Chairman has power to decide this question sitting alone under Rule 6(1), even although factual issues arose in determining the issue. See Tsangacos v Amalgamated Chemicals Ltd [1997] ICR 154, compare Mobbs v Nuclear Electric plc [1996] IRLR 536.

The real question is whether, in the exercise of his discretion, he was bound to adjourn the matter for a hearing before a full Employment Tribunal, bearing in mind also the issues arising in the substantive hearing on the question of unfair dismissal. Plainly there was some overlap between the gross misconduct issue for the purposes of the qualifying period determination and on the substantive question of whether or not the Appellant had been unfairly dismissed.

We bear in mind the desirability of all matters being heard at one time by a full Tribunal consisting of the Chairman and lay members, Sutcliffe v Big C's Marine [1998] IRLR 428, however we have concluded on the particular facts of this case that the real problem was not that the question of gross misconduct was tried at a preliminary hearing by a Chairman alone, but that the Appellant and his solicitor chose not to attend. It is clear from the correspondence that his solicitor appreciated the issue arising over the Appellant's alleged gross misconduct in relation to the preliminary point on qualifying service. The Appellant and/or his solicitor should have attended the hearing to rebut the allegation that he was guilty of gross misconduct. He did not do so.

In our judgment it cannot be said that it was a perverse exercise of discretion on the part of the Chairman to sit alone and proceed to hear and determine the preliminary issue in these circumstances, and accordingly we shall dismiss this appeal.