United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DALE MARTIN (of Counsel) Messrs Fishers Solicitors 6-8 Kilwardby Street Ashby-de-la-Zouch Leicestershire LE65 2FU


 


JUDGE PETER CLARK: This case raises important procedural points which must proceed to a full inter partes hearing.

1. The appellant, Mrs Osborne, was employed by the corporate respondent, Valve (Engineering) Services Ltd ['the Company'] as office manager/PA from 23rd October 1995 until her dismissal on 20th October 1999. Following her dismissal she presented an Originating Application to the Employment Tribunal dated 8th November 1999 in which she complained of unfair dismissal, sex discrimination and breach of contract. The breach of contract claim relates to an alleged entitlement under a profit share scheme which we are told may be quantified at £200,000, or thereabouts, at any rate more than the £25,000 ceiling on the Employment Tribunal's jurisdiction imposed by Article 10 of the Extension of Jurisdiction Order 1994.
2. A directions hearing took place in this case before a Chairman, Mr J A Threlfell, sitting alone at Leicester on 29th February 2000.
3. At that hearing Counsel for the appellant, Mr Martin, applied for leave to withdraw the breach of contact claim with a view to pursuing it in the unlimited jurisdiction of the civil courts. That application was opposed by the Company's solicitor on the basis that the appellant was legally represented and should have considered the question of jurisdiction before issuing the breach of contract claim in the Employment Tribunal. The Chairman took the view, as appears from paragraph 1 of his reasons promulgated on 29th February, that it was a matter for the appellant to decide whether or not she wished to withdraw a part of her claim. He then ordered that the breach of contract claim be dismissed on withdrawal. (Our emphasis added.)
4. It then occurred to the appellant's advisers that the form of order made by the Chairman may have the effect of barring her from pursuing the breach of contract claim in the civil courts. See Barber v Staffordshire County Council [1996] IRLR 209. Accordingly, the appellant's solicitors made an application for review by letter dated 17th March.
5. The Chairman dismissed that review application summarily under rule 11(5) by a decision with reasons dated 21st March 2000. In short, he did not foresee any difficulty in the appellant proceeding with her breach of contract claim in the ordinary courts, notwithstanding the original order which he made dismissing the claim on withdrawal.
6. The appellant's advisers were more cautious. As a result this appeal is brought against both the original order made by the Chairman and his subsequent review decision.
7. It seems to us that the question as to what is the proper order to make in these circumstances, the effect of the order actually made by the Chairman and the question as whether the Chairman fell into error (a) in making the original order in the form that he did and (b) in refusing to review the application on the grounds set out in his reasons are all matters which require full argument.
8. Accordingly we shall allow the appeal to proceed to a full inter partes hearing. For that purpose we direct that the appeal be listed for four hours, Category B. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing.
9. Mr Martin points out that the remaining claims before the Employment Tribunal of sex discrimination and unfair dismissal have already received two days of hearing on 13th to 14th March and that having been adjourned part-heard the new dates on 10th-12th May have been vacated pending the determination of this appeal. In these circumstances, we direct that an expedited hearing date be obtained for this appeal as soon as is reasonably practicable.
10. The final direction relates to a note made by the appellant's solicitor of the hearing before the Chairman held on 29th February 2000. We direct that a copy of that note be sent to the corporate respondent's solicitors within seven days of today and those solicitors are to indicate whether or not the note is agreed seven days thereafter. Failing agreement, copies of that note and any different note prepared by the respondent's solicitor are to be sent to the Chairman forthwith for his comments on precisely what was said on this issue on 29th February.