United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Yusef Patel (Representative)
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


THE HONOURABLE MR JUSTICE WALL

1. This is an appeal by the Imam Zakariya School against the unanimous Decision of the Employment Tribunal sitting at Manchester on 13 January 2003. The Decision of the Tribunal was that the Applicant, Mrs H Patel, had been employed by the Respondent School for a continuous period of in excess of one year ending with the effective date of termination of her contract of employment on 28 June 2002.
2. As the Decision indicates, this was an application by Mrs Patel for unfair dismissal and the case was listed for a preliminary hearing to determine whether Mrs Patel qualified for bringing a claim for unfair dismissal by having been employed for a continuous period in excess of one year prior to the effective date of termination of her contract of employment. That was the only issue which the Tribunal addressed, and the Tribunal made findings of fact in relation to it, which enabled it to conclude that Mrs Patel did qualify.
3. In the light of the way this appeal has developed, we propose to say no more upon the matter than that which relates to the statutory time-frame. It is clear from our reading of the papers that the findings of fact in relation to the time period were ones which the Tribunal was properly entitled to make, and with which this Tribunal could not interfere. In these circumstances, having heard argument, we gave the Appellant the opportunity to consider its position over lunch. After the short adjournment, we have been told by Mr Yusef Patel, for the Appellant, that it wishes to withdraw the appeal and the appeal will be dismissed upon being withdrawn.
4. The particular reason we have taken this course after discussion with Mr Patel, is that the Notice of Appeal for the first time raises the allegation that the contract between Mrs Patel and the school was illegal. This is not a point which was taken before the Tribunal and at the outset of the appeal, we made it clear to Mr Patel that we had considerable reservations about the propriety of this Tribunal dealing with an issue which had not been dealt with at all by the Tribunal below. Mr Patel sought to persuade us that it was the responsibility of the Tribunal in any event to grapple with the illegality if it arose on the face of the evidence, and at this stage we propose to say no more about that aspect than this: if the Appellant wishes to argue before the Tribunal that Mrs Patel should not receive any compensation, or is not entitled to any compensation, because the contract between herself and the school was illegal, that is, in our view, a matter which must be litigated before the Tribunal itself. It may involve facts of which we know nothing, and in any event it seems to us that if that allegation is to be raised, it ought to be properly pleaded.
5. As we made clear to Mr Patel a moment ago, we are not encouraging him to take the point; he must decide with those advising him as to the propriety of so doing. But if he does wish to take it, it seems to us that he should plead it; and that there should be delivered both to Mrs Patel and to the Tribunal, what will, in effect be an amended form IT3, that is to say a document which sets out the school's case in relation to the illegality point. We think that should be done within twenty eight days.
6. Clearly if Mrs Patel wishes to reply to that she should have a similar period thereafter in which to do. We noticed that the Tribunal, on 29 January dealt with the question of an exchange of witness statements and other matters relating to a hearing. We do not in any way interfere with those directions. The case must now go back to the Tribunal for a full and proper hearing, but as we have indicated, we direct that the Appellant, if it wishes to take the point, file a document or statement within twenty-eight days, setting out in full its case on illegality and that Mrs Patel, if so advised, shall file a statement twenty eight days thereafter setting out her case.
7. In these circumstances it seems that the matter can now be fully dealt with by the Tribunal. Our Order will be that on its withdrawal by the Appellant, the appeal will stand dismissed. The matter will now be referred back to the Tribunal for the remainder of the hearing, and within twenty eight days from today, if it wishes to take the point, the Appellant must file a statement setting out its case in relation to illegality, with Mrs Patel being at liberty, if she so wishes, to reply twenty eight days thereafter.