United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R CLEMENT (of Counsel)


 


JUDGE PETER CLARK:

1. This is an appeal by Mr Herman Irish, the Applicant before an Employment Tribunal sitting at London (South), against that Tribunal's decision, promulgated with extended reasons on 20 September 2001, dismissing his complaint of unfair dismissal brought against his former employer, the Respondent Southwark Action for Voluntary Organisations.
2. The Tribunal found that the Appellant's employment with the Respondent commenced on the 26 July 1999. The critical question for them to decide was what was the effective date of termination of the contract of employment. Their primary finding was that the date was 21 July 2000. Consequently, the Appellant had not completed 1 year's continuous service so as to entitle him to bring his complaint of unfair dismissal based on a dismissal by reason of redundancy. Alternatively, they found on the Appellant's case, if he was dismissed on 3/4 August 2000, then his complaint of unfair dismissal, presented to the Tribunal on 29 November 2000 was out of time and he had not put forward any reasons as to why it was not reasonably practicable to present the claim within time.
3. Today we have had the advantage of argument from Mr Clement on behalf of the Appellant. As a result of Mr Clement's submissions and having perused a bundle of documents taken from the original Tribunal bundle which Mr Clement has put before us, we have concluded that this case ought to proceed to a full appeal hearing. The grounds on which we shall permit the appeal to proceed are as follows:

(1) We think it is arguable that the Employment Tribunal was wrong in law in finding that the Appellant was employed under a fixed term one year contract, dated 26 July 1999. It follows, if that be correct that the contract did not terminate by effluction of time on 21 July 2000, as the Tribunal found at paragraph 6 of their reasons. It was not a dismissal under section 95(1)(b) of the Employment Rights Act 1996.

(2) The Tribunal do not appear to have considered whether or not there was a dismissal under section 95(1)(a) of the Act, that is "termination by the employer, with or without notice" taking effect on 21 July.

(3) The Tribunal made an alternative finding that the Appellant was dismissed by letter dated 2 August 2000, on 3/4 August, that is upon receipt by the Appellant of that letter. That finding by the Tribunal appears to assume that this was a summary dismissal with pay in lieu of notice, as opposed to a dismissal on 4 weeks notice. Having considered the Respondent's letter of 2 August 2000, we think it arguable that a clear finding as to that issue was necessary, not least because if the effective date of termination under section 97 of the Act was indeed 31 August, then Mr Irish's originating application was presented in time.

(4) The Tribunal record at paragraph 9 of their reasons that a second form P45 was sent to the Appellant, which erroneously bore the date 31 August 2000, but that form P45 was replaced by a third amended form P45 which showed the correct date of 21 July 2000. Again we have been shown those documents. Apart from the curious feature that with leaving dates of 21 July and 31 August the total pay to those dates was, according to the documents, the same and each document was said to have been created on 11 October 2000, we think that the relevance of the date, 31 August, has not been fully investigated by the Tribunal in their reasoning. In addition, there is no finding by the Tribunal as to whether the third amended form P45 was sent to the Appellant before or after he presented his originating application in this case.

(5) If in fact the effective date of termination was on or about 2 August 2000 the originating application was presented outside the ordinary 3 month time limit. However, the Appellant's case based on the form P45 which he received from the Respondent was that the effective date of termination was 31 August. If the effective date of termination was 2 August or thereabouts then it seems to us that inherent in the Appellant's case was the submission that he had been misled as to the effective date of termination by a representation made by his employer, that is that the effective date of termination was 31 August, as appeared in the employer's own form P45. That, it seems to us is one of the factors which the Tribunal arguably ought to have investigated, bearing in mind the guidance given by Lord Justice May in Palmer v. Saunders and Southend-on-Sea Borough Council [1984] ICR 372 385.

4. For these reasons we consider that the appeal should proceed to a full hearing. For the purpose of that hearing, we direct that the case be listed for half a day, Category C. There be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be sent at the same time to the EAT.
5. Finally, the bundle of the documents which has been placed before us by Mr Clement should be made available to the Respondent. The Respondent may add any further documents which are considered to be relevant to the appeal from those documents which were before the Employment Tribunal, so that there will be a final agreed bundle for use by the EAT at the full hearing.