MRS O OBASA v LONDON BOROUGH OF ISLINGTON [1999] UKEAT 353_99_0207

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 353_99_0207Case No Appeal No. EAT/353/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS O OBASAAPPELLANTLONDON BOROUGH OF ISLINGTONRESPONDENT
Before
Mr Justice Charles Mr D J Hodgkins Cb Mr D A C LambertDate 2 July 1999
[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE CHARLES : This case comes before us by way of preliminary hearing. The parties are a Mrs Obasa and the London Borough of Islington. The subject matter of this appeal is a decision of the Employment Tribunal which was sent to the parties on 26 January 1999. The part of the decision that is appealed against is the decision by the Employment Tribunal that they had no jurisdiction to continue to hear the claim for unfair dismissal on the basis that it was brought out of time.[2]The reasoning of the Employment Tribunal as to that is primarily in paragraphs 4 and 5 of their Extended Reasons. In paragraph 4 they find that the date of termination of the Applicant's employment was 15 June 1995 and in paragraph 5 they go on to refer to a concession recorded in a decision which had recently been the subject matter of comment in an application before this Tribunal.[3]We would comment firstly that at this point (and nowhere else in the Extended Reasons) do the Employment Tribunal refer to the statutory test of reasonable practicability. But, and possibly more importantly, they do not refer to an earlier decision of the Employment Tribunal, case Number 20256/1995 - 41747/95 which was a hearing at London (North) under the chairmanship of Mr Roose. That decision was the subject of an appeal to this Tribunal but that appeal was dismissed at the preliminary hearing before His Honour Judge Levy QC and two Members of this Tribunal.[4]Turning to the extended reasons for that earlier decision of the Employment Tribunal which were sent to the parties on 21 May 1996 at paragraph 1, or part of it, in the following terms:
"1 By Originating Application dated 4 April 1995 the Applicant complained of race discrimination and victimisation. By Originating Application dated 13 July 1995 she further complained of constructive unfair dismissal."
Paragraph 4 of those Extended Reasons contain the following as to the Applicant's contentions:
"In relation to the constructive dismissal she had not resigned. She had applied to take advantage of the Respondent's long term maternity scheme and that application had been processed as a matter of routine."
So it is clear that in that decision the points at issue, in the present decision, were before that Tribunal. And at paragraph 8 the conclusion of the earlier Employment Tribunal is as follows:
"Our finding is that the Applicant did not terminate her contract of employment but merely sought to withdraw herself from the work place by applying to take advantage of the Respondent's long term maternity policy which would have kept her away until her youngest child was of an age to be left while the Applicant attended work. She has stressed to us that she could not afford to terminate her employment. In the course of his submissions Mr Burns referred to Western Excavating Ltd v Sharp [1978] ICR 221 and Bashir v Brillo Manufacturing Co [1979] IRLR 295 which we found to be helpful. We find that this application too must fail."
[5]As we read that paragraph it is reasonably arguable that it is a finding by the Employment Tribunal that her contract of employment did not terminate but continued. In this context we note that both a resignation and a dismissal do terminate a contract of employment and in any event a termination by any method would not fit with the concession that the Applicant was still employed by the Respondent Council referred to in paragraph 2 above and which was set out in the later case before the Employment Tribunal Number: 2201426/96 heard at London (North) with Mr Williams as chairman on 4 June 1997 (see paragraph 1 of the Extended Reasons sent to the parties on 7 July 1997).[6]It thus seems to us that it is reasonably arguable that the concession referred to in paragraph 2 above was based on a finding by an earlier Industrial Tribunal and therefore that it is reasonably arguable that in reality it is not a concession, but a finding that remains a finding between the parties.[7]As we have said, that earlier decision of the Industrial Tribunal (Number: 20256/1995 - 4147/95 Chairman: Mr Roose) is not mentioned in the most recent decision that is the subject of this appeal.[8]We hope that the reason why the Employment Tribunal in the present case did not refer to that earlier decision will be of interest to, and will be explained to, the Tribunal that hears this case. For example, was it an oversight of that Employment Tribunal or was the content of that decision not drawn to the attention of the Employment Tribunal by the London Borough of Islington or the Appellant. Equally we think that an explanation should be given of the position concerning what this Tribunal knew of that earlier decision, when the matter was before Mr Justice Morison and he made the comments referred to in paragraph 5 of the Extended Reasons that is the subject of this appeal.[9]It follows, in our view, that reasonably arguable points of law arise on this appeal.[10]Firstly, on the basis that it is reasonably arguable that there was not a concession but a finding of an earlier Industrial Tribunal that the employment continued and thus, on one view Mrs Obasa is placed in a catch 22 situation in that she lost on the first occasion on the basis that her employment was still continuing, and lost on this occasion on the basis that it terminated. It is reasonably arguable that that cannot be right.[11]Even if that is wrong and thus not a reasonably arguable point, the other point that we consider to be reasonably arguable is that either the Employment Tribunal did not apply the statutory test or did not adequately explain why and how they were applying the statutory test, in respect of the issue of reasonable practicability. As to this if it had been common ground between employee and employer that the contract of employment was continuing and in another field of law that might well give rise to an allegation of estoppel by conduct. It seems to us that as a minimum the reason why that common ground expressed in the concession referred to in paragraph 2 did not support and found an argument that it was not reasonable practicable to present the complaint earlier should be considered and explained by an Employment Tribunal.[12]On the basis of the points that we have identified as being reasonably arguable, we shall direct that this appeal goes to a full Tribunal for determination. We will give it Category B and estimate it for a day.[13]We shall give a direction that Mrs Obasa and the London Borough of Islington both provide a chronology of each and every case between them before the Employment Tribunal and appeals therefrom with, if possible, the relevant Extended Reasons so that this Tribunal is fully informed of the position as to the history of this case. As to that we have not found the chronology put in by the London Borough of Islington that easy to follow.[14]Those chronologies and supporting documents are to be lodged with skeleton arguments 14 days before the hearing of this appeal.