United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M CHOUDHURY (of Counsel) Instructed by: Messrs Staffurth & Bray York Road Chambers Bognor Regis West Sussex PO21 1LT


 


JUDGE CLARK

1. This is an appeal by the Respondent before the Brighton Employment Tribunal sitting on 21 September 1999, Martlet Estate Agents, Plc against that Employment Tribunal's decision promulgated with extended reasons on 29 October 1999, upholding the Applicant, Mr English's complaint of unfair dismissal and making awards totalling £13,827.84, by way of basic award, compensatory award and pay in lieu of notice.
2. The Notice of Appeal, not settled by Mr Choudhury who appears before us today sets out some 12 different grounds. However, the matter has been distilled and we think raises 2 arguable points of law to go forward to a full hearing.
3. The factual background is that the Applicant below was employed as Office Manager at the Respondent's Sesley office from 1 April 1997 until his summary dismissal on 30 April 1999. The background to the dismissal was that on the 29 April 1999 the Applicant had been directed to attend the local County Court the following day in an action involving his employers. He spoke to the proprietors of the Respondent business, Mr and Mrs Miller and was told by Mr Miller to go to court although the Applicant complained that he did not have sufficient money to pay for his travel expenses. Unknown at the time to Mr and Mrs Miller, the Applicant faxed the court saying that he was unable to attend because of a family bereavement and asked for an adjournment, which in the event was granted. On the following day Mr Miller summarily dismissed the Applicant for failing to follow an order, that is to attend the County Court as instructed. Having dismissed him, Mr Miller looked at the court file and found a copy of the Applicants fax of the previous day seeking an adjournment on the grounds of a family bereavement. Before the Employment Tribunal the Respondents gave evidence first and as the Employment Tribunal record in their reasons they did not require the Applicant to give evidence as to liability because the case was so overwhelming against the Respondent that it was unnecessary to take evidence from the Applicant. The Applicant did give evidence during the subsequent remedy hearing.
4. The first point in time, which we think ought to proceed to a full hearing, is a procedural one. It seems to us arguable that the Employment Tribunal ought not to have terminated the liability hearing at the close of the Respondents evidence without hearing from the Applicant. See for example Hackney London Borough Council –v- Usher (1997) ICR 704.
5. The second point on which this appeal will proceed to a full hearing relates to the assessment of compensation. The Employment Tribunal concluded, in paragraph 4(d) of their reasons, that had Mr Miller learnt of the fax which misleadingly informed the County Court that the Applicant suffered a bereavement when he had not, that Mr Miller would have been justified in then dismissing him on the basis of gross misconduct.
6. Although the Employment Tribunal later in their reasons consider the question of contribution they do not appear to have considered what is loosely called the Polkey principle, that is to say whether it was not just and equitable to award compensation under the compensatory head on the basis that absent the unfair procedure it would have been open to the Respondent to have dismissed the Applicant fairly as a result of after-acquired knowledge.
7. We have considered whether this is a point which was not but ought to have been taken by Mrs Miller who appeared on behalf of the Respondent below. It is of course open to the Respondent to this appeal to raise that matter at the full hearing, but we bear in mind the judgment of Mr Tucker J in Redbank Manufacturing Co Ltd –v- Meadows (1992) IRLR 209 to the effect that a Tribunal considering compensation for unfair dismissal ought as a matter of course to consider the Polkey principle. Accordingly on those 2 grounds only, the case will proceed. All other grounds remaining in the Notice of Appeal are hereby dismissed.
8. The matter will proceed to a full hearing, time estimate ½ day, category C. There will be 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 Appeal Tribunal at the same time. There are no further directions; in particular we do not require the Chairman's Notes of Evidence.