United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR COMMISSIONER HOWELL QC:

1. In this appeal which is before us today for preliminary hearing, Mrs Sheila O'Neill seeks to have set aside, as erroneous in law, the decision of the London Central Employment Tribunal contained in Extended Reasons sent to the parties on 31 July 2000 at pages 12 to 15 of the appeal file before us.
2. The decision was one of the Tribunal Chairman, sitting alone, and was a decision on a claim for breach of contract which had been made against Mrs O'Neill by the Manageress of a Montessori Nursery School of which Mrs O'Neill is the owner.
3. The dispute was simply over the amount of salary, including holiday pay, due to Mrs Wesson who was the Applicant before the Tribunal, for the period after she gave what purported to be a term's notice, in accordance with the terms of her annual employment contract in the autumn of 1999. The effective date of termination of Mrs Wesson's employment in accordance with the notice she gave appears very clearly from the papers, including the Originating Application before the Tribunal and Mrs O'Neill's answer before the Tribunal at pages 19 and 22 of the appeal file respectively, to have been 9 December 1999. It appears therefore to have been accepted on both sides that the one term's notice expired on that date.
4. In those circumstances it appears to us arguable that the Tribunal Chairman did err in law, as alleged by Mrs O'Neill, when he made an award in his Extended Reasons based on an assumed entitlement to continued remuneration up to the end of the Christmas holiday, ending on 2 January 2000. The point we consider arguable is whether that finding and the monetary award he made in consequence of it embodied a misdirection as to the effect in this case of a term's notice and arguably also ignored the actual terms in which the notice was given to expire on 9 December 1999.
5. In directing that the appeal should go forward to a full hearing of the Employment Appeal Tribunal for it to consider that issue we also direct that at the full hearing the parties, both sides, should be prepared to address the Employment Appeal Tribunal on the question of whether, if they do find the Chairman to have misdirected himself, there may be some pro rata entitlement to annual holiday pay which had accrued by the date of termination on 9 December 1999 which Mrs Wesson has still not been paid.
6. We give that direction so that, if at all possible, the Employment Appeal Tribunal which hears the full hearing of this appeal can give the final decision on any actual amount that it may find to be due and so bring finality to the case without the necessity for yet another Tribunal hearing on the amounts involved.
7. On that footing we will direct that the case should go forward to a full hearing of the Employment Appeal Tribunal, listing Category C with a time estimate of half a day. That is only an estimate and if anybody, when they come to prepare the case, thinks that they really are going to need longer, then the Employment Appeal Tribunal office should be informed.
8. We have so far dealt only with the terms of the original Notice of Appeal submitted by Mrs O'Neill dated 8 September 2000. An amended Notice of Appeal was submitted on 21 September 2000 in which Mrs O'Neill alleged that she had been denied the right to a fair trial, in that the Chairman refused to allow her to present her case and/or listen to her and, as a result, the Chairman did not take into account all the relevant facts of the case, as set out in paragraph 6(i) and 6(ii) which were the original grounds of appeal, in order to reach a fair and proper decision. That had annexed to it the actual terms of a letter from the Applicant's Solicitors identifying 9 December 1999 as being the expiry of the period of notice. Since then the comments of the Employment Tribunal Chairman have been obtained and are at pages 10 to 11 of our appeal file where he does not accept the suggestion that Mrs O'Neill's case had anything other than a full hearing when the matter proceeded before him. We have concluded that this third suggested ground of appeal really adds nothing material to the first two, since the substantive question is whether the Chairman misdirected himself in missing the point about the period of notice, and if he did get this wrong it does not really matter what the reasons were that led him to make the mistake.
9. Insofar as the amended Notice of Appeal dated 21 September 2000 is before us, we do not therefore allow the appeal to go forward on ground (iii), alleging a breach of natural justice in the conduct of the hearing itself. But on the other two grounds, the substantive grounds, we direct it should go forward, and Mrs O'Neill has confirmed to us she is content with that.
10. There is one further complication and that is that there is a correction of a date when the notice of resignation was given, which is 9 September 1999 and not 9 December 1999, which is obviously just a typographical error in the original Notice of Appeal and that can be taken as corrected, without any more formal amendment being needed.
11. Finally, we direct that skeleton arguments for the full hearing of the appeal should be exchanged between the parties and lodged with the Employment Tribunal office not later than 14 days before the date fixed for the full hearing.

NOT TO BE INCLUDED IN JUDGMENT

Judge: Mrs O'Neill, we at the moment were not persuaded that that gave you a separate free-standing ground of appeal which warranted us sending that forward as a separate ground of appeal to the Employment Appeal Tribunal. So what we were minded to do was give only the directions that we have already done which was to send it forward on the ground that he had misdirected himself in missing the point about the period of notice. We will hear you if you want us to continue to send the point about the conduct at the hearing forward, but it may be that in the light of what we have already said, you will not think it is necessary for that aspect of the matter to be pursued because if he did get it wrong, then the decision will have to be set aside. It does not really matter what the reasons were that led him to make the mistake. Do you want to address us on that or ..

Mrs O'Neill: No that's fine. It is just that there was also a summer payment mentioned which just did not exist.

Judge: Yes, there is a week at some stage in the summer which that was also, you say, was not justified by the evidence in front of him. Yes. I think you will be able to draw the full Tribunal's attention to that in the course of your argument on the first two questions. At the moment, in directing the full Tribunal's attention to the mistakes he made, I think you will be able to make that point without having to go into the question of whether he unfairly shut you up in the course of the hearing and behaved in the way that you say he did and he appears not to accept. But, as I say, if you want to have that ground also to go forward then we will hear you on it before deciding what to do about it. If you are content that the matter should rest there, then what we will do is direct that the appeal should go forward on the two grounds identified in the original Notice of Appeal of 8 September and leave it at that and I suppose formally we would dismiss the appeal, so far as it is based on the third ground of what can be loosely called "an alleged breach of natural justice". I am not sure that the amended Notice of Appeal is actually strictly before us. You presumably have to ask our leave to bring it in, wouldn't you?