MS A PARASCANDOLA v (1) MR M HAWTIN (2) GREEN FLAG LTD [1999] UKEAT 972_99_0212

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 972_99_0212Case No Appeal No. EAT/972/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS A PARASCANDOLAAPPELLANT(1) MR M HAWTIN (2) GREEN FLAG LTDRESPONDENT
Before
His Honour Judge D Pugsley Mrs T A Marsland Mr J A ScoullerDate 2 December 1999
[1]APPEARANCES For the Appellant Mrs Vellins (Representative) JUDGE DAVID PUGSLEY : This is a case, which arises out of an appeal from the Employment Tribunal sitting Leeds. We are grateful for the obvious care that the appellant's representative, Mrs Vellins of the Leeds Citizen Advice Bureau has given to this matter and although she has modestly deprecated any great knowledge of the law, she certainly has, if we may say so, a homing instinct for what is relevant, not always a quality shown by those who are professionally qualified. The position is this that we have come to the view, putting it delicately; this is clearly of case where this is arguable on the grounds selected. The tribunal dismissed the applicant's case at the end of the applicant's case sighting an unreported decision of Popplewell J in Mrs Betty Mansfield v Yorkshire Water Authority (EAT/490/85) . We consider that that course is one that may arguably reflect on some aspects of this decision since the were disputed issues of fact and therefore the Chairman and the members were making a judgment on the applicant without having had the benefit of hearing the respondents give evidence.[2]But more fundamentally, we are concerned that a particular paragraph in this decision may be arguably an error of law. Paragraph 6:
"It is difficult to see where there was a breach of trust and confidence in this case but, in any event, that is very often only an excuse to get in the "reasonableness test" which was found not to be the appropriate test as long ago as 1977 in Western Excavating (EEC) Ltd v Sharp [1978] ITR 132 . The test has to be the contract test and the Applicant has not been able to show that there was a breach of contract in this case, certainly not a fundamental breach of contract."
[3]We consider that the first ground of appeal:
"that the Employment Tribunal erred in law in stating that a breach of trust and confidence relates to the "reasonable test"
. It was established by the House of Lords in Malik v BCCI [1997] IRLR 462 that employment contracts contain an implied term of Trust and Confidence." If one may say so, the appellant's representative has put her finger bang on the issue which we consider should go to a full tribunal.[4]We make an order that this should be listed for half a day, Category C. Skeleton argument to exchanged and received at this tribunal not less than 14 days before the date fixed for the full hearing of the appeal.