United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


MISS RECORDER SLADE QC:

1. We have had placed before us a letter from Mr Smith, Director of Chester City Football Club, requesting an adjournment of this preliminary hearing on the basis that he is unable to attend because he is ill. We have carefully perused the papers and in the light of our conclusion, we consider that it is not necessary for us to grant that adjournment and we will give our decision based on the written materials before us.
2. This is the preliminary hearing of an appeal by Chester City Football Club against the decision of an Employment Tribunal sitting at Liverpool. It had before it a claim by the former chief executive of that club Mr Wingrove. The Tribunal reached various conclusions finding breaches of contract by failing to make payments of wages, by failing to pay commission and by failing to pay a certain bonus. The Tribunal also held that Mr Wingrove had been unfairly dismissed and it made a compensatory award of £10,268.
3. Mr Smith, in a very lengthy Notice of Appeal supported by an affidavit, makes a number of points. Having considered the papers, we are of the view that some of those points do disclose some arguable points of law and those are as follows:

1. That the Tribunal's decision that a letter purportedly dated 30 July 1998 and signed on 6 August 1998 was a contract entered into at or around that time between Mr Wingrove and Mr Guterman on behalf of the Chester Football Club was perverse. The point is made in the Notice of Appeal that the Tribunal's conclusion was perverse in the light first of the fact that there had been a creditor's voluntary arrangement in relation to the club and that there was no reference in the Tribunal's decision that it was somewhat curious in those circumstances that the alleged contract had not come to light. In addition, Mr Smith points out that there is no reference in the Tribunal's decision to the fact that the letter relied upon as the contract was not written on the club's headed notepaper. It was signed by Mr Guterman but there was no evidence that Mr Guterman was acting on behalf of the club in entering into the agreement. Again that is a point which we consider can properly be raised to support an argument on perversity. There are or may be other perversity allegations relied upon by Mr Smith to challenge the finding of the Tribunal that the contract had been entered into between Mr Wingrove and the club in the terms set out in the letter purportedly dated 30 July 1998.

2. We consider that there is a justifiable basis upon which the club can attack the finding of the Tribunal that the Applicant, Mr Wingrove, did not resign as an employee. He did resign as a director. We consider that there are just about made out the Club's Notice of Appeal arguments upon which it can challenge on grounds of perversity the finding that Mr Wingrove did not resign as an employee. In particular it is somewhat curious that the Tribunal did not deal with Mr Smith's central allegation on this point that Mr Wingrove's position was that if he could not be a director of the club he was not going to continue as an employee. The Tribunal had made reference to the allegation in paragraph 16 of the Decision but it is arguable that it did not state why it was rejected

3. Perhaps more importantly, the finding that Mr Wingrove was to be awarded compensation based on 6 months' salary is one which, in our view, is susceptible to attack on the basis of perversity if the contentions set out in the Notice of Appeal were before the Tribunal . In particular the contention is advanced that some days after the termination of Mr Wingrove's employment what has been called a secret contract came to light which would have considerably benefited Mr Wingrove on a change of ownership of the club. Plainly a failure to disclose such a contract to fellow directors of the club was capable of amounting to gross misconduct. The Tribunal do not seem to expressly have dealt with the contention that when that matter came to light, some two weeks after the termination of Mr Wingrove's employment, the club would have terminated Mr Wingrove's contract summarily and done so fairly. If that evidence was before the Tribunal it is clear that it was not expressly referred to and in our view forms some basis for an argument that it was perverse to award compensation running beyond the time at which it was likely that the contract would have come to an end in any event.

4. Other matters raised in the very lengthy grounds of appeal which in our view do not raise arguable points of law. On the basis that we have outlined we consider that this matter should go forward to a full hearing. In so concluding we offer no encouragement to Mr Smith or the club as to the eventual outcome that is a matter entirely for the Tribunal which will hear the full appeal in this case.
5. Because this is a perversity appeal we order that all the notes of evidence be made available for the purposes of this appeal and we order that skeleton arguments be lodged and exchanged not less than 14 days before the date fixed for the hearing of this appeal and if we are to make a time estimate ourselves we would think that this appeal should occupy no more than half a day, listing category C.