United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SEAN JONES (Of Counsel) Instructed by: Messrs Beachcroft Wansbroughs Solicitors St Ann's House St Ann Street Manchester M2 2LP


 


JUDGE PETER CLARK

1. On 3 August 2000, Mr Morris, the Applicant, presented an Originating Application to the Manchester Employment Tribunal complaining of unfair dismissal. The matter came before an Employment Tribunal chaired by Mrs C Porter over 4 days in July 2001. Following a further day's deliberations in Chambers the Employment Tribunal promulgated their decision with Extended Reasons on 11 October 2001, upholding the Applicant's complaint. Against that decision the Respondent now appeals and the matter comes before us for Preliminary Hearing today.
2. The case raised a number of potential issues, viz:

(1) did the Applicant resign? If so, was he constructively dismissed?

(2) alternatively, was he actually dismissed by the Respondent?

(3) in the event of a dismissal, constructive or actual, what was the effective date of termination of the contract?

(4) depending on the answer to the third question, was the application out of time? If so, was it reasonably practicable to present the claim in time. If not, was it presented within a reasonable time thereafter?

(5) if the Applicant was dismissed, whether actually or constructively, had the Respondent employer shown a potentially fair reason for dismissal? If so, what was that reason?

(6) if a potentially fair reason was shown, was the dismissal fair or unfair applying Section 98(4) of the Employment Rights Act 1996?

3. Passing directly to the Employment Tribunal's conclusions on these issues we are struck by the number of alternative findings made, viz:

(1) the Applicant did not resign. He was dismissed by the Respondent:

(a) orally by Mr Pearse on 14 April 2000, or

(b) by letter dated 25 April, taking effect the next day, or

(c) by letter dated 5 May, taking effect on 8 May.

(2) if he did resign he did so:

(a) on 30 March, in response to a repudiatory breach by the Respondent, or

(b) similarly on 10 April,

in either event the Employment Tribunal found he was constructively dismissed.

(3) as Mr Jones points out, on any of the above alternatives, save for that under paragraph 1(c), the Originating Application was presented out of time. It had been common ground between the parties on the face of the pleadings that the effective date of termination was 6 May perhaps the only date not selected by the Employment Tribunals, as one of their alternative findings. In these circumstances a jurisdictional question arose which does not appear to have been addressed by the Tribunal at all.

(4) having considered various possibilities, including conduct, capability and some other substantial reason as the reason or principal reason for dismissal, if there was a dismissal, the Employment Tribunal finally determined that the Respondent had failed to show any potentially fair reason for dismissal.

(5) alternatively, if the Respondent had shown a potentially fair reason, it was nevertheless an unfair dismissal.

4. We confess that we have never come across a decision containing so many permutations. It may be thought that the word 'decision' only loosely describes the Employment Tribunal's reasoning process in this case.
5. In these circumstances we think that the only course at this Ex Parte Preliminary Hearing stage is to allow the appeal to proceed to a full inter partes hearing. We do not propose to reduce the present grounds of appeal. We do anticipate that this is a case in which the Respondent to the appeal may wish to put in a fairly full answer so that the next division has a proper opportunity to navigate through the seemingly endless permutations presently on offer in order to arrive at a clear conclusion in this case.
6. For the purposes of the full hearing we shall direct that the case be listed for 1 day. Category B. There will 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 lodged with this Court at the same time. There are no further directions.