United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IS NEITHER REPRESENTED NOR PRESENT.


 


MR RECORDER LANGSTAFF QC:

1. We have before us a preliminary hearing in Mr Kear's case, which was heard before the Southampton Employment Tribunal on 22 February 2000, extended reasons for which were promulgated on 7 March. Mr Kear claimed breach of contract. He had been, as the Employment Tribunal found, the Manager of Scoring Solutions for the Respondent employer. On 13 October 1999 he would have faced the ultimatum of being asked to resign with three months notice, or be sacked with payment of 3 months notice in lieu, but in fact, not having attended that meeting, at which the ultimatum was to be addressed to him, was sacked summarily by his employer, for what was contended to be a breach of contract. The breach of contract was said to be (a) Mr Kear's emailing a trade competitor and in that e-mail expressing derogatory remarks about a fellow and senior employee in the employment of the Respondent and (b) including with it an article in a newsletter, prepared for the employer which contained information confidential to the employer, which should not have been disclosed to a competitor. The Tribunal dealt with the matter in this way. At page 6 paragraph 14 they say:

14. "He was called to a meeting on 14 October, was told of the E Mail and its contents in the newsletter, their views and the evidence of the Respondents was that there was really no response from the applicant whatsoever and no reasons given for his conduct, and therefore they felt they had no alternative, but to dismiss him summarily for what they considered was gross misconduct and as such, under the terms of his contract, he was not entitled to any compensation by way of notice pay."

2. Pausing there: had this been a claim in respect of unfair dismissal, then one could well understand that there would have been (or might very well have been) no claim, on the basis of those findings of fact, applying the well-known tests. However, this was a contract claim, which therefore required for the dismissal of Mr Kear's claim a conclusion that he was not entitled as a matter of contract to any period of notice. That itself requires a finding of fact that on the balance of probabilities Mr Kear had been in repudiatory breach of his contract of employment. This, the Tribunal addressed at paragraph 18. Turning to the major issue of the breach of contract claim, they say:

18. "We had full submissions on behalf of the applicant and the respondents. The respondents referred us to the very old case of Lamb v Evans [1892], which sets out the question of confidentiality and documents, and positions such as the applicant was in. We were also referred to the extract from Chitty and we find unanimously that we have to accede to the submission of the respondents' advocate that in this case there was a breach of confidentiality in the sending of the fax and the newsletter."

No reasons are given as to why it is that this Tribunal found this material to be confidential and in his Notice of Appeal, Mr Kear seriously questions whether it was.

3. Having reminded ourselves of the guidance to be obtained from Faccenda Chicken v Fowler [1984] ICR 297 and the earlier case of Hyvac v Park Royal [1946] Chancery 169 it seems to us that a distinction is to be drawn, in terms of confidentiality, between such as trade secrets and possibly, information such as lists of customers, if they are truly confidential, both before and to some extent after a dismissal on the one hand, and other information which although deriving from an employers business is not truly confidential at all. The Tribunal gave no particular reason why they thought the material before them was confidential. Since there are thus no signs that they directed themselves in accordance with what seem to us to be applicable authorities, there is no reason why the full Employment Appeal Tribunal should not consider in greater detail and at greater length, with the assistance of the respondents, whether in fact the Employment Tribunal were justified in coming to the conclusions they did, in the terms they did.
4. We have been faced further with a late application to amend the Notice of Appeal to include an argument in respect of the counter claim, which the Tribunal found proved. This was, in essence, a claim by the employer in respect of expense which the employer was put to, because the employee failed to turn up to take advantage of a room which he had booked, in order to attend a work related conference. It should be said that this was booked at the company's expense. The question here is a jurisdictional one, whether given the terms of the Extension of Jurisdiction Order 1994 article 4 and the terms of the Employment Tribunals Act 1996, s.3 (2) this was in truth a contract at all, in respect of the breach of which the employers could claim in the Employment Tribunal and secondly, whether it fell within the description in the jurisdiction order as being a claim which was outstanding at the date of dismissal.
5. We think, though with some hesitation, that we should give leave to amend the Notice of Appeal and permit this point to be argued. The points are fairly short points. We consider however that they will require some knowledge of and some submissions in relation to the law. It would be helpful to have, therefore, ½ a day allowed, copies of relevant authorities to be provided one week before the hearing, together with a skeleton argument and an amended Notice of Appeal which perhaps, Mr Kear your assistant today may help you in drafting. To be submitted within 7 days of today, as a precondition of the appeal on the cross appeal proceeding. It can be listed as category C.