United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR EMMANUEL A DANLARDY (The Appellant in Person)
For the Respondent	MR JULIUS NKAFU (Solicitor) Southwark Race & Equalities Council 36a Rye Lane London SE15 5BS

SUMMARY

Practice and Procedure - Striking-out/dismissal

Unfair Dismissal - Automatically unfair reasons

Employment Tribunal failed to properly analyse the relevant questions which it had to ask itself in order to decide whether or not there was an automatically unfair dismissal under s.104 Employment Rights Act 1996. In particular it failed to ask itself (a) whether Appellant was asserting a statutory right (even though one did not exist) and (b) whether he acted in good faith.


 


HIS HONOUR JUDGE BIRTLES

1. This is an appeal from the decision of an Employment Tribunal sitting at London South on 27 June 2005. The decision was that of a three-member Tribunal. The Chairman was Mrs F Silverman. The members were Mrs V Davidson and Miss M J Gaborak. The decision which was a reserved one, was sent to the parties and entered in the Register on 29 September 2005.

The Material facts

2. The material facts are that Mr Danlardy commenced work with the Respondent on 22 November 2004 and was summarily dismissed on 5 January 2005. He applied for a job as an RIF worker with the Respondent, pursuant to an advertisement in the Voice newspaper. The advertisement stated that the job was for 28 hours per week at a pro rata scale of £21,516. Mr Danlardy was interviewed for the job and was successful. He was offered the job and he commenced his employment on 22 November 2004.
3. The letter offering him the job was, the Tribunal found, incorrect in stating the salary payable to him. However, the Tribunal went on to find as a fact that this was corrected in a letter dated 1 November 2004. Mr Danlardy, whilst in employment, asserted that the advertisement was misleading and he thought he had been employed for a full-time rate, i.e. a five day week, at a salary of £26,992. The Tribunal heard evidence as to whether or not Mr Danlardy had asserted that statutory right and found that there was some difficulty in accepting that assertion. However, Mr Danlardy continued to work for the Respondent. As I say, he was summarily dismissed on 5 January 2005, the Respondents assert for lack of capability. Mr Danlardy's assertion before the Tribunal was that he was dismissed because he had asserted a statutory right under section 104 of the Employment Rights Act 1996.
4. The Tribunal dealt with the matter in this way, in paragraphs 10 and 11 of its Judgment:

"10. Since the Claimant had less than a year's service he would only be entitled to bring a claim for unfair dismissal if he could show that his dismissal was automatically unfair (e.g. for asserting a statutory right).

11. The terms of the Claimant's contract were well known to him when he accepted the job. We find that he chose to use the Respondent's mistake in their letter of 25 October to claim that he had been misled and was being underpaid. He applied for a job at £21,516 for a 28 hours week and that was what he was paid. The Respondents are not in breach of contract towards the Claimant and consequently the Claimant has no statutory right to assert. That being so, he is unable to bring an unfair dismissal claim before the Tribunal because he lacks the necessary qualifying period of employment."

5. Mr Danlardy had also brought claims in respect of race and sex discrimination. Those claims were also dismissed by the Employment Tribunal. There was also a contractual claim which was also dismissed. Mr Danlardy appealed against that decision and the matter came before the President (sitting alone) on 8 March 2006 at a preliminary hearing. Having heard Mr Danlardy in person, the President dismissed all the grounds of appeal save one, and the President dealt with that matter in paragraphs 5 and 6 of his Judgment where he said this:

"5. As to the contention that he was unfairly dismissed, he plainly did not have continuity of employment to claim that unless he could show that it was an automatically unfair dismissal which would entitle him to take a claim even without any relevant continuity of employment. It was his case that he had been dismissed for asserting his statutory rights. That is, he says that he was refusing to sign the contract agreeing to the lowering, as he perceived it to be, in his pay, and was complaining about a failure to make full payment of his salary. The Tribunal dealt with that at paragraph 11 of its decision. It is at least arguable that in that part of the decision the Tribunal focused upon whether or not his statutory right, was infringed as opposed to whether or not he was asserting the statutory right whether rightly or wrongly.

6. It seems to me that there is an issue in relation to the Tribunal's approach to paragraph 11 which can properly be heard by a full Tribunal. It is an extremely short point and I ought to say to Mr Danlardy that even if the Tribunal is shown to have erred in that paragraph, it may at the end of the day help him not at all if the Tribunal were to conclude that the outcome would inevitably have been the same. But I do not think that that is a matter that I should deal with now."

6. Today Mr Danlardy has again represented himself and the Respondents are represented by Mr Julius Nkafu, who is a solicitor employed by them. We are grateful to both them for their Skeleton Arguments and oral submissions. Our conclusion is that the Tribunal was in error and it may be helpful if I read from relevant part of section 104 of the Employment Rights Act 1996:

"104 Assertion of Statutory right

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee-

(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or

(b) alleged that the employer had infringed a right of his which is a relevant statutory right."

(I say that of course this is a section 104 (1) (b) case).

"(2) It is immaterial for the purposes of subsection (1)-

(a) whether or not the employee has the right, or

(b) whether or not the right has been infringed;

but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith."

7. The proper analysis to approaching a claim under section 104 is for the Tribunal to look at whether or not the conditions in section 104 (1) are satisfied. In other words first, has Mr Danlardy alleged that the employer had infringed a right of his which is a relevant statutory right? Second, to decide whether or not he has that right, has it been infringed? Third, it has to go on to decide whether or not the claim to the right and the claim to the fact that it has been infringed has been made in good faith or not. Unfortunately the Employment Tribunal in this case in paragraphs 10 and 11 of its Judgment did not go through that thought process. We cannot tell clearly whether the Tribunal found whether or not Mr Danlardy (a) was asserting a statutory right and if he was not, for what reason he was not, and (b) if he was asserting a statutory right, whether or not he was acting in good faith. He is entitled to know the conclusions of the Employment Tribunal on those issues. It follows that in our Judgment there has been an error of law on the part of the Employment Tribunal and we must therefore allow the appeal and remit the case to the same or a different Employment Tribunal.
8. We have to bear in mind the decision of the last President, Burton J, in the case of Sinclair Roche and Temperley v Heard [2004] IRLR 763 and in particular the criterion he sets down at paragraph 46. I will go through them; I think it is appropriate to do so. The six factors he identifies that we should consider in remitting a case are these. First, proportionality. It seems to us that there are issues here that the Tribunal does not appear to have considered. Either the same or a fresh Tribunal will have to hear evidence about that. Second is passage of time. That does not cut either way. There is no real risk here that that passage of time would affect the decision of the original Tribunal. Third is bias or partiality. I think there is no real suggestion here that this Tribunal was biased against Mr Danlardy. The fourth factor is that it is a totally flawed decision. It is certainly a flawed decision. The fifth factor is second bite of the cherry by the same Tribunal. Having considered all of Mr Danlardy's case, it is clear that the Tribunal dismissed the other claims and there must be some fear at least that the Tribunal would take the same view of the assertion of the statutory right point. Finally, there is the question of Tribunal professionalism. We do make the assumption that the Tribunal is capable of a professional approach in dealing with the matter on remission.
9. There is an additional factor in this case which is that the Respondents do not press us to remit the case to the same Tribunal. It seems to us that looking at all those factors together, the right course would be to remit this claim in respect of section 104 of the Employment Rights Act 1996 to a fresh Tribunal which will clearly have to hear evidence as to the factors which section 104 require to be heard, as well as submissions obviously from both parties. There is no basis for re-opening Mr Danlardy's other claims that he brought before the original Tribunal. They, of course, remain dismissed.