United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T LINDEN (of Counsel) Instructed by: London Borough of Harrow Borough Secretary & Solicitors Dept P O Box 2, Civic Centre Station Road Harrow HA1 2UH


 


JUDGE D PUGSLEY

1. In this case we have the advantage of a lucid Skeleton Argument in which Mr Linden sets out, in very clear terms, that there is, what he says is an obvious arguable point. The Employment Tribunal are to be commiserated with in that they were deciding this case, based on the Employment Appeal Tribunal's in Haddon v Van Den Bergh Foods [1999] IRLR 672 EAT and Wilson v Ethicon [2000] IRLR 4 but before what may be described as the restoration of the orthodoxy in Beedell v West Ferry Printers Ltd [2000] IRLR 650 and Foley v Post Office [2000] IRLR 827.
2. In paragraph 9 and 14 of the extended reasons the Employment Tribunal followed Haddon and Wilson, and in terms they said:

"14….We considered carefully the representations of the respondent that the band of reasonable responses test should be applied, but we do not agree that in this case it would be appropriate."

3. The Tribunal, of course, did not have the benefit of the judgment of the Court of Appeal in Foley and if it had, it is at least arguable that they would have taken a rather different view, and particularly if they had the benefit of reading the judgment of Lord Justice Mummery, the former President of this Tribunal.
4. In these circumstances, in our view, we think this case ought to go to a full Tribunal. We make an order for Category C, half a day, the usual orders to Skeleton Arguments and the Respondent is requested to specifically respond to paragraph 6, subsections 4 - 6 in the Notice of Appeal, particularly when those matters are common ground between the parties.