United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A FREER (Solicitor) Instructed By: Pattinson & Brewer 71 Kingsway London WC2B 6ST


 


MR JUSTICE CHARLES:

1. This appeal comes before us today by way of preliminary hearing today and therefore our function is to consider whether or not the appeal raises a reasonably arguable point of law.
2. The appeal is from a decision of an Employment Tribunal sitting at London (South), the Extended Reasons for which were sent to the parties on 27 November 2000.
3. The application was a claim for unfair dismissal. The central issue in the case related to the application of Regulation 8 of TUPE. That appears from paragraph 5 of the Extended Reasons. The Employment Tribunal concluded that Regulation 8(2) applied and thus that there was an ETO reason for the dismissal of the Applicant. They also decided that the dismissal was not unfair under Section 98 of the Employment Rights Act 1996. Ms Green, the Applicant before the Employment Tribunal appeals. The Respondent is Elan Care Ltd.
4. The background facts appear from paragraphs 1 to 4 of the Extended Reasons, paragraphs 6 to 15 deal with the submissions and, in particular, the rival contentions are recorded in paragraph 12. The Extended Reasons also demonstrate that the Employment Tribunal considered the cases of Berriman and Crawford which are leading cases on this subject. The findings are in paragraphs 16 to 19.
5. The Notice of Appeal in paragraph 6.1 raises a ground of appeal in these terms:

"The Tribunal erred in law by failing to make a finding on the reason for dismissal or, if more than one reason, the principal reason for the dismissal of the Appellant by the Respondent."

6. We confess that when we read the Extended Reasons ourselves we did not think a great deal of that ground because it seemed to us, reading the Extended Reasons as whole, that the Employment Tribunal were identifying an ETO reason. However, during the course of submissions this morning our attention has been drawn to paragraph 4 of the Extended Reasons and then to the last sentence in paragraph 19 thereof, which to our minds found an argument that can be reasonably advanced, that perhaps the Employment Tribunal were identifying redundancy as the reason for the dismissal and that, it is argued (again in our view reasonably), flies in the face of some of their earlier findings.
7. We will therefore allow that ground to go through. The representative of Ms Green asked for leave to amend paragraph 6.1 of the Notice of Appeal to make it clear, that the above ground was included therein. In our judgment that ground is inherent in the existing paragraph 6.1 but it would be advantageous if that amendment was made to make it clear.
8. We give leave to make that amendment and to lodge the amended Notice of Appeal within 21 days. As the Respondent to the appeal is not represented before us, although I think a representative of the Respondent is in court, we will give the Respondent liberty to apply to vary or discharge that order because they are not here to be heard today. If they wish to make that application they could do so by way of an interlocutory application but we would urge them to do so at the main hearing, having flagged it up in a skeleton or a letter beforehand.
9. We repeat, it seems to us, that the amendment is one simply to provide clarification of the existing ground, rather than the introduction of a new ground.
10. The other grounds of appeal are in paragraphs 6.2 to 6.5 of the Notice of Appeal which relate to the Tribunal's application of the cases they have referred to and, in particular, the need to show changes in the workforce. We have had the benefit of submissions on those grounds. Having regard to those submissions we are of the view that those grounds raise arguable points. There is no need for us to set them out in this judgment because they are set out in the skeleton argument. Our function is only to determine whether or not those grounds are reasonably arguable. In our judgment they are and therefore the appeal will proceed to a full hearing on those grounds as well.
11. We give this case Category B and a time estimate of half a day.