United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N HART (Solicitor-Advocate) Appearing under the Employment Law Appeal Advice Scheme


 


HER HONOUR JUDGE A WAKEFIELD:-

1. This is an ex parte preliminary hearing of an appeal by Mrs Anne Wicks against a decision of an Employment Tribunal sitting at Reading by which it was held that she had been unfairly dismissed by the respondent from her job as House Manager but was not entitled to a compensatory award because, to quote the words of the Employment Tribunal, "the dismissal would have taken place in any event."
2. The grounds of appeal against this decision, prepared by the appellant in person, revolve around the assertion that the dismissal was not inevitable since there were other catering and managerial positions available, or shortly to become available, which were not offered to her. There is also today an application made on behalf of the appellant, who is represented by Mr Hart under the ELAAS Scheme, to have new evidence admitted on any full hearing of the appeal. That new evidence we have been referred to today.
3. In paragraph 18 of the Employment Tribunal decision, which was sent to the parties on 25 September 2001, they dealt with the question of the alternative jobs as follows:-

"The evidence before us from the applicant was that there were other posts that she could have fulfilled and these should have been offered to her. The evidence of the respondents was very clearly that the only post available at the time of the consultation process in February and March was that of Operations Manager, which was the post the applicant could not or would not fulfil as she was not prepared to live-in. There was no evidence to support the applicant's assertion that there were functions of food and beverage managers available. Although those posts may have become available later, the evidence before the Tribunal was that the post that was available was also a live-in post and therefore not suitable for the applicant but in any event such appointments were dealt with much later. The respondents also said that there were no other vacancies although the applicant asserted that some Assistant Manager posts were filled. There was no evidence to support that assertion and was inconsistent with the proposed restructuring as set out in the Consultant's report.

We therefore concluded that even if there had been the appropriate consultation with Mrs Wicks in the period from 7 February onwards when the decision had crystallised her employment would have come to an end in any event at the end of March when the new Operations Manager was due to take up post."

The Tribunal therefore concluded that no compensation award was payable, the appellant having already having been paid a statutory redundancy payment together with notice pay and an ex gratia payment of unspecified amount.

4. Before us the appellant seeks to argue that the new evidence which we have been referred to today, being firstly a letter from the former General Manager of the respondent, apparently supports her assertion that at the relevant time the respondent "would be advertising a number of posts in the catering department". The appellant also relies on documents relating to an Employment Tribunal hearing of another employee's claim (being an employee who had been dismissed at about the same time and in whose claim evidence was given by respondent's witnesses, that such posts might have been available).
5. In the light of the proposed new evidence and the findings in paragraph 18 of the decision of the Employment Tribunal, together with the review decision to which we have been referred for the first time today, we consider that this matter should go forward to a full hearing to determine, firstly, whether the new evidence should be admitted in the appeal and, in any event, whether the Employment Tribunal misdirected itself in determining that no compensatory award (even as to loss of statutory rights) should be made to the appellant.
6. We put the matter in Category C, with the time estimate for the hearing being between three quarters and one day. We require a substitute Notice of Appeal within 21 days of today. Skeleton arguments are to be served not later than 14 days prior to the date of the hearing. We require the review decision to be included in the bundle of documents for the full hearing and we ask for the Employment Tribunal Chairman's Notes of any evidence from the appellant or any of the respondent's witnesses about alternative jobs together with cross-examination of the appellant about the letters on pages 16 and 17 of our bundle. Any documents to which those witnesses referred in that evidence are to be copied for the EAT bundle.