United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	JOHN WIGGINS Representative Tottenham Legal Advice Centre 754-758 High Road London N17 OAL


 


JUDGE COLLINS

1. This is a preliminary hearing of an appeal against the decision of an Employment Tribunal sitting at London (North) with extended reasons promulgated on 17 July 2000. The Respondents, the members of the Management Committee of the Eritrean Committee in Haringay, employed the Appellant as a Co-ordinator from 11 October 1996 until 6 December 1999.
2. In their reasons the Tribunal give a short account of the nature of the Respondents' activities. They are a publicly funded unincorporated registered Charity established in 1985 by Eritrean refugee residents with objects including the relief of poverty, the protection and preservation of health, the advancement of education and training for employment, for about 2000 resident Eritreans.
3. Community activities are conducted according to Eritrean custom and tradition. Policy is set by committee of unpaid volunteers. The Appellant started working as a volunteer. In 1994 there was some outside funding and he was employed part-time as a community development worker. Subsequently when the national lottery provided some funds, he successfully applied for the post of co-ordinator at the salary of £21,000 a year.
4. The contract which he was employed under was for two years expiring on 30 September 1999. We have been provided with a copy of it. Clause 1 provides that the Appellant's employment is subject to the availability of continued funding. It does not identify any particular source from which the expected funding should come. We have been shown a budget which had been prepared in 1999 by the Appellant himself as a co-ordinator which shows that the total amount involved in the operation was modest but was one which was carrying forward a balance in Spring 1999 of something over £20,000.
5. What happened was, as is plain from the budget which the Appellant prepared, that there was only outside funding for his post guaranteed until the end of September 1999. It was appreciated that further monies had to be made available for his job to be viable and 30 September came and went and nobody did anything about it. The Tribunal took the view that as all the members of the management committee were volunteers and the Appellant knew more about his own contract of employment than anybody else it was really his responsibility to do something about it.
6. We understand why the Tribunal took that view. They did not care for the Appellant as a witness and they preferred the evidence of Mr Mercorios the Trustee. But that being said, the Respondents should have been aware of the basic terms of employment of their employees and cannot devolve their responsibility upon the employee whose employment is in question. After 30 September the Appellant carried on doing effectively the same job that he was doing before without anybody trying to stop him and arranged for his salary to be paid.
7. By 6 December it was apparent that no external funding specifically targeted towards his job was going to be provided. The Appellant received a letter of dismissal saying effectively that he had been working as a volunteer since 30 September and should have known perfectly well that there was no money to pay him and that he was to regard himself as having been dismissed from that date.
8. The matter came before the Tribunal who accepted the Repondent's point of view. They held that in all the circumstances and on a proper consideration of all the facts the Appellant's employment did indeed terminate on 30 September 1999 and that he was not employed under a contract of employment thereafter. Accordingly there was no wrongful dismissal and there was no breach of contract.
9. They considered the question of unfair dismissal. They held that the reason why the Appellant was dismissed was because he was redundant in the absence of further external funding. In the peculiar circumstances of the case, the tiny nature of the organisation, the voluntary position of the trustees and the much more knowledgeable position of the Appellant, it was one of those rare cases where consultation would not have been appropriate. And they held that the Respondents acted reasonably in all the circumstances of the case in dismissing the Applicant if that is in fact what they did, by reason of redundancy. They awarded him statutory redundancy pay and ordered him to repay the salary which he had drawn for two months after 30 September.
10. The Tribunal expresses that as an award of damages and that is arguably misconceived. The repayment of the salary was not damages for breach of contract. It was a restitutionary claim for money had and received or at the best, money paid under a mistake of fact. Mr Wiggis has contended, although that he did not take the point before the Tribunal, that there was an absence of jurisdiction to entertain a restitutionary claim of that kind and his failure to take the point did not confer on the Tribunal jurisdiction which it did not have.
11. We take the view that it is reasonably arguable that the Tribunal came to the wrong conclusion about the Appellant's status between the 30 September 1999 and 6 December and we direct that the matter proceed to a full hearing on that account. That will also mean that the claim for wrongful dismissal and for damages for breach of contract will also fall to be considered at the full hearing. So far as the unfair dismissal is concerned we take a different view. It has been argued that the Tribunal were perverse in concluding that the employers acted reasonably in treating redundancy as a ground for dismissal and that the Tribunal was wrong in concluding that the Appellant was redundant at all. The budget is pointed to and it is suggested that there were surplus funds. We cannot accept that argument.
12. It is perfectly clear that the position of the co-ordinator was dependent upon there being dedicated funds to support that particular position and in the absence of such funds in our judgment the employers were perfectly entitled to come to the view that there had been a diminution in the requirement of the business for employees to perform work of the kind performed by the Appellant.
13. The Tribunal were entitled to come to the conclusion that he was redundant and that the way in which the employers handled the redundancy in the unusual circumstances of this case was for the reasons which the Tribunal gave, reasonable in all the circumstances of the case in particular having regard to the size and resources of their undertaking. We do not think there is any arguable point of law in relation to the unfair dismissal.
14. In relation to the counterclaim, we think that there is a reasonably arguable point of law as to whether the Tribunal had jurisdiction. The Employment Tribunals Act 1996 S3 gives the Tribunal jurisdiction to hear a claim for damages for breach of contract. As I have already indicated it seems to us reasonably arguable this was not a claim for damages for breach of contract nor a claim for a sum due under a contract. It seems to us reasonably arguable that the Tribunal had no jurisdiction to entertain a restitutionary claim. We direct that issue to proceed to a full hearing as well. We will order this case to be listed in Category C. Time estimate 2 hours. Skeleton Arguments 14 days before the hearing.