United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R M WHITE (of Counsel) MESSRS RUSSELL JONES & WALKER Swinton House 324 Gray's Inn Road London WC1X 8DH


 


JUDGE CLARK

1. This is an appeal by the Applicant before the London (South) Employment Tribunal, Mr Beedell, against that Employment Tribunals decision, promulgated with extended reasons on 14 December 1999 following an 8 day hearing, dismissing his complaint of unfair dismissal.
2. In short the Applicant was employed by the Respondent as a Printer. He was also a Trade Union Father of Chapel.
3. On 29 September 1998 he was involved in what the Tribunal describes as a scuffle with another employee, Mr Ray Ratcliffe. Following disciplinary proceedings the Applicant was summarily dismissed. An internal appeal against that decision was rejected.
4. On 29 December 1998 he presented an Originating Application to the Employment Tribunal. He alleged first, that he had been automatically unfairly dismissed by reason of his trade union activities; alternatively he contended that his dismissal, if by reason of conduct was unfair under Section 98(4) of the Employment Rights Act 1996. Secondly, he claims damages for breach of contract (that is, an action for wrongful dismissal).
5. The Employment Tribunal decided:

1. That he was not dismissed by reason of Trade Union activities but for conduct

2. That the dismissal was fair under Section 98(4) of the Act

3. That he was not guilty of gross misconduct and that his claim for wrongful dismissal succeeded.

6. In this appeal the Employment Tribunal's finding as to the reason for dismissal is not challenged, however, it is contended that the finding that dismissal by reason of his conduct was fair may be challenged in law on two grounds. First, that the Employment Tribunal failed to take into account the ACAS Code of Practice. See Lock –v- Cardiff Railway Company (1998) IRLR 358 (Morison J). Secondly, that the Employment Tribunal's finding of a fair dismissal was perverse in the light of the Employment Appeals Tribunal decision (Morison J) in Haddon –v- Van Den Burgh Foods Ltd (1999) IRLR 672, as further explained in Midland Bank –v- Madden (EAT 1107/98. 7 March 2000. Lindsay J), particularly in view of the fact that the Employment Tribunal found the dismissal to be wrongful at Common Law.
7. This is a preliminary hearing to determine whether the appeal raises any arguable point or points of law. It seems to me, and my colleagues agree, that this case gives the Employment Appeal Tribunal an opportunity to consider, at a full hearing at which there will be full legal argument by Counsel on both sides, the following questions of law:

1. What is the real effect and application of Morison J's observations in Lock on the relevance of the ACAS Code of Practice in unfair dismissal cases

2. What is the true legal test under Section 98(4)? Is it the band of reasonable responses test or not? Precisely what judgment is it that an Employment Tribunal is required to make in an ordinary conduct case?

3. What is the relationship between the statutory test for unfair dismissal and the common law test for wrongful dismissal?

8. In these circumstances we shall permit this case to proceed to a full hearing so that these points may be properly argued on both sides. I shall reserve this case to myself and direct that it be listed before me at the earliest opportunity. Time estimate 1 full day, to allow for the Respondent's cross appeal on remedies, indicated in their PHD form. 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 the Employment Appeal Tribunal at the same time.