United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS ELIZABETH DUBICKA (of Counsel)
For the Respondent	MR MARK BRITTAN (of Counsel) Instructed by: Messrs Laurie Moran Arthur Solicitors 240 Balham High Road London SW17 7AW


 


HIS HONOUR JUDGE J McMULLEN QC

1. I am asked to consider at this meeting for Directions the further progress of this appeal.
2. The Employment Tribunal made decisions on two claims made by the Applicant. It dismissed her claims of sex discrimination and unfair dismissal at a hearing on 12 July 2001, sent to the parties on 27 August 2001. An appeal was entered against that decision raising both those matters.
3. The Employment Appeal Tribunal, His Honour Judge Reid QC with Mr Crosby and Lord Gladwin conducted a Preliminary Hearing on 7 November 2001. The judgment includes a clear acceptance by the EAT that there was substance in the Applicant's contention that there was a misdirection of fact relating to her length of service.
4. This could be categorised as a matter of jurisdiction, notwithstanding it being essentially a factual issue, and the EAT was anxious for that matter to go forward. It relates to the unfair dismissal claim, I find, and not to the sex discrimination issue. That is because Judge Reid describes "this matter" (see paragraph 4) and distinguishes this matter from, for example, all other respects (see paragraph 4), as to which the Tribunal receives the blessing that there appear to be careful findings of fact made.
5. This matter is distinguished from what Judge Reid describes as "other matters" raised in the Notice of Appeal. Those are all dismissed, for in conclusion at paragraph 7 he says:

7 "The one ground that will therefore go forward arises out of the error of fact as to the length of her employment."

6. In that paragraph various steps are set out for the further hearing because it will be recalled the full hearing was to deal with that one ground. Notes of evidence were to be sought and it is regrettable that they have not yet been provided pursuant to Judge Reid's order; and the basis for that was a dispute about the events on 26 September 2000.
7. Judge Reid's EAT was obviously in some doubt about what would happen at the full hearing, but there is no doubt that they were allowing forward only the unfair dismissal claim which would be allowed if the evidence was that the Applicant had the 12 months service required to make a claim of unfair dismissal. Thus, with considerable reluctance, as the Judge put it, the case was allowed to go forward on that one point.
8. The Order which was perfected requires careful attention, for it says as follows:

"…the Appeal be allowed to proceed to a full hearing solely on the length of employment point and the attendance at the office on the 26^th day of September 2000 point in accordance with the Judgment of the Employment Appeal Tribunal."

That, therefore, draws one's attention to the judgment and to the passages which I have read, from paragraphs 4, 6 and 7.

9. Fortuitously, a full hearing of the appeal has not yet been set because the Employment Tribunal constituted as the same Chairman Mrs Gilbert but with two lay members, decided to review its decision and has found that the Applicant did have continuous service of one year and has gone on to make an award of compensation in her favour; although it has to be said this is of the basic award and not of a compensatory award.
10. There has been no appeal against that decision, nor has there been an appeal against the decision of Judge Reid's Tribunal.
11. At a hearing for directions I have no jurisdiction except to give directions for the further conduct of the hearing. It seems to me it would be an abuse to allow this case to continue to the EAT, for the sole issue which was allowed to go forward has now been resolved by the Employment Tribunal itself in favour of the Applicant. No question arises about the correctness of that decision or the level of compensation awarded. The Applicant is thus the beneficiary of a decision by the Tribunal that she was unfairly dismissed and compensation was awarded.
12. There is simply nothing left from Judge Reid's order to go forward to a full hearing and, therefore, I will, as sought by the Respondent, decide that the case should be taken no further and is dismissed on the grounds that I have set out above and that it is academic.
13. An application has been made by Mr Brittan for costs but it seems to me that the conduct of the Applicant does not fall within any of the pejorative epithets in Rule 34. Lest there be any lingering doubt, and bearing in mind that I do not have a jurisdiction to review or to hear appeals from Judge Reid, it does seem to me that there is force in Mr Brittan's submission that whatever is to be said about what occurred on 26 September the Tribunal has made a finding preferring one set of evidence against the other. I do think that there is substance in the claim which would no doubt be made if this matter went on to a full hearing, that to have succeeded on one question of fact was unusual to succeed on two questions of fact would be most extraordinary and therefore I have no doubt as to the correctness of killing off this appeal at this stage before any further costs are expended. I will refuse the application for costs.