London Borough Of Hackney v Howell [1997] UKEAT 923_96_0403

EAT
London Borough Of Hackney v Howell
[1997] UKEAT 923_96_0403 · 1997-03-04

JUDGE BUTTER QC:

This is an appeal by the London Borough of Hackney in respect of a decision of the Chairman, who sat alone, at an Industrial Tribunal at Stratford on 7 March 1996. We have agreed to consider the case on the basis of the summary reasons which he gave, since he later declined to give Extended Reasons.The decision of the Chairman was that the Tribunal did have jurisdiction to consider the Applicant's complaint of unfair dismissal. The issue before him was simply one of jurisdiction. The employers contended that the effective date of termination of the employment was 25 December 1994. The Applicant, Mr Howell, contended that it was later than that. It was suggested that it was 17 February 1995, in which event, as the Originating Application was issued on 28 April and recorded as received on 4 May 1995, it would have been in time.For reasons which will be apparent I do not propose to give a lengthy judgment. At paragraph 6 the Chairman expressed himself in this way:
"In the Tribunal's view, the Respondent has failed successfully to argue that management actions taken or the correspondence between the parties did make it clear beyond reasonable doubt what was to be the effective date of termination. In the absence of any such certainty, the Tribunal decides that the effective date of termination was not 25 December, but should rather be regarded (in the absence of any competing date) as 17 February 1995."
In expressing himself in the way he did, we are unanimous in our view that he did not apply the appropriate test. The appropriate test is to be found in the case of Newman v Polytechnic of Wales Students Union [1995] IRLR 72 where at page 73 paragraph 5 the test was expressed in this way by His Honour

Judge Hague QC sitting in the Employment Appeal Tribunal:

"... The 'effective date of termination' has to be decided in a practical and common-sense manner, having regard particularly to what the parties understood at the time of dismissal."
In the circumstances since we considered that there is an error of law, we have to consider what is the appropriate next step. We have heard argument on behalf of the Appellants, the London Borough of Hackney, by Miss MacLaren of Counsel. Mr Howell has attended but has not felt that he wished to contribute to the argument which after all does involve matters of law.We can see there are arguments on both sides as to the effective date of termination. We cannot in all fairness say that if the Chairman had applied the right test, that he would necessarily have come down on one side or the other, that is to say in favour of the date of 25th December as distinct from 17 February 1995 or indeed any other date.In all these circumstances we come to the conclusion that the only appropriate course is for us to remit the matter to a Tribunal for them to determine the preliminary issue on the basis of the correct application of the main principle to which I have already referred. We propose in the particular circumstances to direct that the matter be remitted to a differently constituted Tribunal and we consider that that should be a full Tribunal of three Members, the more so since the issue does not depend simply upon the construction of documents but as to what the parties understood at the time in question.For these reasons the appeal is allowed.