United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS KAMAL LADVA (Trainee Consultant) The Employment Law Service Wembley Law Chambers 38 Napier Road Wembley Middlesex HA0 4UA


 


JUDGE CLARK

1. The Applicants before the Southampton Employment Tribunal, Mr Thorne and Miss Rolfe, each commenced proceedings against their former employer, the Respondent, Riverside Centre Ltd, alleging unfair dismissal. Miss Rolfe also brought a complaint of unlawful sex discrimination with which we are not concerned in this appeal. That complaint was subsequently dismissed.
2. The cases were heard together by an Employment Tribunal chaired by Mr D N Cowling over 4 days on 26, 27 April, 18 May and 8 June 1999. The Employment Tribunal reserved their decision, which was promulgated with extended reasons on 7 July 1999. By that decision they found that both Applicants had been unfairly dismissed and then went on to deal with remedies.
3. So far as the compensatory award was concerned the Employment Tribunal found:

(1) Unanimously, that an absence of proper consultation with Mr Thorne about his dismissal by reason of redundancy made no difference to the outcome, but that proper consultation would have extended his employment by a period of 4 weeks. The compensatory award was accordingly limited to 4 weeks net pay.

(2) By a majority, that Miss Rolfe was not entitled to any compensatory award. She had been offered alternative employment by the Respondent which the majority found to be suitable. Her failure to accept the alternative post meant that she suffered no loss attributable to her unfair dismissal. The minority member disagreed. He found that the alternative employment offered was unsuitable in 3 respects. He would have awarded 4 weeks net pay on the same basis as the award made to Mr Thorne. However, the majority view prevailed. Miss Rolfe received no compensatory award.

4. Before the Employment Tribunal both Applicants were represented by Mr R Gould, a solicitor with Messrs Robinson Jarvis & Rolf, solicitors of Newport, Isle of Wight.
5. On 17 August 1999 new representatives, The Employment Law Service at the Employment Law Centre Ltd, entered a Notice of Appeal against the Tribunals decision on behalf of both Applicants. 2 separate grounds of appeal were there advanced:

(1) that before considering the question of remedies the Employment Tribunal did not entertain submissions from the parties' representatives on the issue of remedy

(2) The finding of the Employment Tribunal (by a majority in Miss Rolfe's case) that she had been offered suitable alternative employment was perverse.

6. The case was listed for preliminary hearing before a division of the Employment Appeal Tribunal presided over by Judge Pugsley on 23 November 1999. On that occasion there was no appearance on behalf of the Appellants, their representative relying on written submissions. The EAT adjourned the preliminary hearing and directed that the Chairman be asked to comment on the suggestion in the 1^st ground of appeal that the parties had not been given an opportunity to make representations on the question of remedy before the Employment Tribunal made their decision.
7. The Chairman responded by a letter dated 2 February 2000. It there appears to be accepted that the Employment Tribunal did not hear evidence or entertain submissions dedicated specifically to the question of remedy in this case. The decision on remedies was reached on the basis of the evidence and submissions directed to the issue of liability.
8. The case returns to us today on the resumed preliminary hearing. Miss Ladva submits that it is axiomatic that a Tribunal makes plain to parties precisely which issues are for determination at a hearing. This gives the parties the opportunity to call all relevant evidence and to make submissions on all issues. That, she submits, was not done in this case. The failure to make it clear to the parties that the Tribunal will be deciding the question of remedies if they found in favour of the Applicants on the question of liability amounts to an error of law. We think that the proposition is arguable and consequently the case will proceed to a full appeal hearing. For that purpose we direct that the appeal be listed for 2 hours, category C; there will be an exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged with the Employment Appeal Tribunal at the same time.
9. There are no further directions. In particular we do not think it necessary to seek the Chairman's Notes of Evidence.