Heath v Brake Brothers Foodservices Ltd [1994] UKEAT 891_94_1511

EAT
Heath v Brake Brothers Foodservices Ltd
[1994] UKEAT 891_94_1511 · 1994-11-15
His Decision was made in proceedings brought by Miss Heath against the Respondent, Brake Brothers Foodservices Limited for constructive dismissal from her position as an Area Sales Manager.Miss Heath was notified of the Full Reasons for the Decision on the 9th August 1994. As she was disappointed with the Decision, she appealed by a Notice of Appeal dated16th September 1994. The position today is that she has not attended the Preliminary Hearing of the Appeal held for the purpose of deciding whether her appeal raises an arguable point of law.The Tribunal has not received any letter or other communication from her to explain why she would not be attending. The Tribunal received this morning a letter from the Respondents stating that they would not be attending. That would be the usual position on a Preliminary Hearing. The letter states that Miss Heath had made a subsequent application to the Industrial Tribunal. At a Preliminary Hearing held on 4th November 1994, the Industrial Tribunal dismissed her application as out of time. Although no details were provided, it agreed that her application was for a review of the earlier decision, and that her application for review had not been made within the time prescribed by the Rules.As Miss Heath has not attended to pursue the Appeal, we take the view that her Appeal should be dismissed for failure to prosecute it. We should, however, add a few words about the merits of the Appeal as we have read the papers and considered the point raised in her notice of appeal.The facts found by the Chairman as set out in his Full Reasons, are that Miss Heath started to work for Brake Brothers Foodservices Limited on the 3rd July 1989. Her employment was terminated on the 6th May 1994, but there was a break in her employment in 1992. On the 22nd September 1992, she wrote a letter to her employers giving them a month's notice, as required under her contract. That, in the view of the Chairman, was a letter with a degree of finality.The result of the letter was that her period of notice would have expired on the 21st October. During the period of notice, she had a visit from the manager, next above her line manager, with whom she had fallen out. The visit was from Mr Massey who wanted her to return.He told her that Brake Brothers were in the process of buying a firm in Bodmin and that would take place in January 1993 when he would like her to join them. She agreed to do that. He told her that she could return to the Plymouth depot or wait and join Brake Brothers in January. They decided that, in the circumstances, it might be better if she had a break.There was a further meeting on the 23rd November. She was appointed to her new position as a retail area sales manager at Bodmin and started work there in January 1993. She went to work for another company in the period of the break.The question for the Chairman was whether Miss Heath could count the period absent under the various exceptions in the [1978] Act Schedule 13. The Chairman decided that she could not be brought within any of the exceptions. In those circumstances, he held, with some regret, that he had to dismiss her Application at that stage.That ruling was made, on a preliminary point as to whether she had the right to complain of unfair dismissal. The point was whether she had been continuously employed for a period of not less that two years ending with the effective date of termination. As she lost on the preliminary point, the Tribunal had no jurisdiction to continue to hear the case on the merits.The Notice of Appeal does not raise any ground of criticism against the particular points decided by the Chairman on Schedule 13 of the [1978] Act. The only point raised in the Notice of Appeal is one that does not appear to have been raised at all before the Industrial Tribunal. The point is one on Community Law and is as follows:
"It is more difficult for a woman to meet the two year continuous employment rule than a man. The Tribunal's Decision is incompatible with Article 119 of the Treaty of Rome and EC Directive 75/117/EEC on Equal Treatment in that it discriminates against women."
The position of this Tribunal is that it would not normally allow a new point to be raised on an Appeal which could have been raised in the Industrial Tribunal, but was not. We take a more relaxed view in relation to EEC points, particularly in the case of a person representing themselves, as Miss Heath was before the Industrial Tribunal.We next consider whether there is, in the present state of the law, anything in the point stated in the Notice of Appeal. As the position stands at the moment, the High Court has held, on an Application for Judicial Review against the Secretary of State for Employment, that the two year qualifying requirement does not prime facie discriminate against women.That was decided in the case of The Queen -v- Secretary of State for Employment at ex parte Seymour Smith [1994] IRLR 448. As it does not prime facie discriminate against women, it would not be possible to complain that the two year requirement in the 1978 Act was contrary to the Equal Treatment Directive or to Article 119 of the Treaty of Rome.We understand that the Decision in that case is under appeal. Our duty is to decide this case in accordance with the law as it is, subject to this qualification that our own decisions are liable, either of our own motion or on application, to review. That is under Rule 33 of the Employment Appeal Tribunal Rules [1993]. Any order we make may, on a review, be revoked or varied on a number of grounds, including the ground that the interests of justice require such review. There is a 14 days time limit for making an application, but that may be extended by order of the Tribunal in an appropriate case.The order we propose to make on the present hearing is that this appeal be dismissed, because the only ground raised in the Notice of Appeal is not arguable in the light of the case of the Queen -v- Secretary of State for Employment ex parte Seymour Smith . If, however, a higher court at a later stage reaches a contrary decision then it will be for Miss Heath to consider whether she wishes to make an application to this Tribunal to review the order, or whether she wishes to start a new complaint on the basis of her rights (if she has any), on this point, under Community law.The order we make today, is that the Appeal is dismissed.