United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR McNALLY (of Counsel) Instructed by: Messrs Caporn Campbell 5 Brighton Road Surbiton Surrey KT6 5NU


 


JUDGE PETER CLARK

1. By an Originating Application presented to the London (South) Employment Tribunal on 29 June 2000 the Appellant, Mrs Newman complained both of unfair dismissal and wrongful dismissal by her former employer, the Respondent Hawkshill Investments Ltd. The claims were resisted.
2. That complaint came on for hearing before a Tribunal chaired by Ms C E Taylor on 20 November 2000. By a Decision promulgated with Extended Reasons on 20 December 2000 the complaint was dismissed. Against that Decision this appeal is brought.
3. It is convenient to begin with the issues identified by the Tribunal at paragraph 5 of their Reasons. They were:

(1) whether the Appellant had been dismissed from her job of office manager/receptionist or whether she had resigned;

(2) if she was dismissed, whether that dismissal was fair or unfair;

(3) whether the Respondent had breached a term or terms of her contract of employment.

4. The material facts found by the Tribunal were as follows. The Appellant had been employed by a company, Thistle Estates Limited for a number of years, on her case, not disputed by the Respondent, since August 1994, when the business was brought by the Respondent company in December 1999. There is no express finding by the Tribunal as to whether or not a relevant transfer then took place for the purposes of TUPE regulations, however, no question of a breach in continuity of employment at that stage was identified by the Tribunal in their statement of the issues or in their reasons generally.
5. At that time the Appellant was on maternity leave and was due to return to work on 1 February 2000. There was a dispute as to whether or not on 7 January 2000 the Appellant came into the office and tendered her resignation to Mr Body, a director of the Respondent, to take effect at the end of her maternity leave. The Tribunal resolved that issue in favour of the Respondent, the Appellant did then tender her resignation and the Tribunal found that that resignation was accepted by Mr Body.
6. Thereafter, so the Tribunal found, the parties then agreed a fixed-term contract for the period 1 February to 31 March 2000. At the end of that period, during which the Appellant worked partly at home and partly in the office, under the terms set out in a letter from the Respondent to the Appellant dated 17 February 2000, the employment expired.
7. On those facts the Tribunal found that all payments due to the Appellant during the fixed term had been paid. No further payments were due. As to the claim of unfair dismissal, the Tribunal simply state, at paragraph 12 of their Reasons:

"The unanimous decision of the Tribunal is that the Applicant was not unfairly dismissed"

8. The first ground of appeal advanced by Mr McNally is that on the face of their reasons the Tribunal failed to consider whether the Appellant was dismissed on 31 March 2000 within the meaning of Section 95(1)(b) of the Employment Rights Act 1996, that is expiry of a fixed-term contract without renewal and if so, what potentially fair reason for the dismissal has been made out by the Respondent and, if any, whether the Respondent acted reasonably in treating that reason as a sufficient reason under Section 98(4). It is asserted that no potentially fair reason was advanced below, it being the Respondent's case simply that the Appellant was not dismissed.
9. We think that that point is arguable. We return to the issues identified by the Tribunal. First, was the Appellant dismissed? It seems to us arguable that, on the face of their reasons, the Tribunal considered that that question was answered adversely to the Appellant by their finding that she tendered her resignation in January and that resignation was accepted. Even if the employment terminated by resignation at the end of January what was the effect of the parties agreeing a fixed-term contract to follow immediately upon the expiry of the Appellant's notice without a break in continuity? Was there not continuity of employment through until 31 March 2000 and was that not the finding of the Tribunal in the last sentence of paragraph 10 of their Reasons? If so, was not the expiry of the fixed-term contract a dismissal within the meaning of Section 95(1)(b)? If so, what potentially fair reason for dismissal was advanced by the Respondent? Did the Tribunal find that such a reason was established? If so what of reasonableness under Section 98(4)? None of these questions appear to have been answered by the Tribunal in their Reasons which gives rise to a complaint by the Appellant that she does not know why she lost. See Meek v City of Birmingham District Council [1987] IRLR 250.
10. All of these are matters which we think require investigation at a full hearing. So far as the remaining grounds of appeal at paragraphs 3 and 4 of the grounds are concerned, they are directed to questions of fact which in our judgment do not give rise to any arguable point of law fit to proceed to a full hearing, our jurisdiction being limited to correcting errors of law.
11. Thus on the grounds more particularly identified in this judgment, we shall allow the matter to proceed to a full hearing. The appeal will be listed for two hours, Category C, there will be an exchange of Skeleton Arguments not less than fourteen days before the date fixed for the full appeal hearing, copies of those Skeleton Arguments to be lodged with the EAT at the same time.