MR B BAILEY v SNELL & WILCOX LTD [2000] UKEAT 1042_99_1611

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1042_99_1611Case No Appeal No. EAT/1042/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR B BAILEYAPPELLANTSNELL & WILCOX LTDRESPONDENT
Before
His Honour Judge D M LevyLord Davies of CoityDate 16 November 2000
[1]APPEARANCES For the Appellant MR C M GASKELL Solicitor Messrs Cutler Gaskell Solicitors 159 Ashley Road Hale Altrincham Cheshire WA15 9SD JUDGE LEVY QC On 5 May 1999 Mr B Bailey ("the Appellant") brought proceedings, received by the Employment Tribunal on 6 May, claiming constructive/unfair dismissal by his employer Snell & Wilcox Ltd ("the Respondent").[2]After the Respondent's IT3 had been received, on 21 June 1999 there was an interlocutory hearing attended by the applicant in person and Mr Foster of Counsel for the Respondent before a chairman sitting alone. He made an order which appears to have attempted to clarify the Appellant's claim for unfair dismissal. The order at paragraph 1 reads:
"The applicant's claim for unfair dismissal appears to fall into two possible parts: one relating to constructive unfair dismissal, or the other relating to a direct dismissal, both of which apparently occurred on 2 March 1999."
[3]There was a hearing before an Employment Tribunal sitting at Southampton before a different Chairman with Members on 30 June 1999 ("the June Hearing). The unanimous decision of the Tribunal, promulgated on 20 September 1999, was that:
"(1) The [Appellant] was not dismissed by the Respondent; (2) It therefore follows that [the Appellant] was not unfairly constructively dismissed by the Respondent; (3) The [Appellant's] claim for unfair dismissal is dismissed."
[4]A Notice of Appeal by the Appellant from that decision reached this Tribunal dated on 20 August 1999. Because complaints were made about the Chairman's conduct at the June hearing, the Appellant was ordered to lodge an Affidavit on which after it had been sworn, the Chairman and Respondents' comments were sought. The Appellant swore an Affidavit on 8 October 1999 on which the Chairman and the Respondents respectively commented on 15 October 1999 and on 3 November 1999. There was then a preliminary hearing of the Appellant's appeal before a Panel of this Tribunal headed by Charles J on 14 January 2000. Then Mr Gaskel, who appears for the Appellant today, assisted the Appellant under the ELAAS cheme. Charles J gave a judgment as to the future conduct of the Appeal. The order he made was:
"THE TRIBUNAL ORDERS that the Appeal be adjourned in accordance with the judgment of the Employment Appeal Tribunal THE TRIBUNAL FURTHER ORDERS that the Appellant be granted leave to amend the Notice of Appeal in the form submitted THE TRIBUNAL FURTHER ORDERS that leave be granted to re-amend the Notice of Appeal within 42 days in accordance with the judgment of the Employment Appeal Tribunal THE TRIBUNAL FURTHER ORDERS that within 42 days the Appellant do lodge an affidavit setting out: (a) those matters he alleges were raised but not dealt with in the decision of the Employment Tribunal and their relevance (b) those matters which he wishes to raised but he alleges he was prevented from raising and how he was so prevented THE TRIBUNAL FURTHER ORDERS that the Appellant provides a copy of the bundle of documents that were before the Employment Tribunal THE TRIBUNAL FURTHER ORDERS that the listing officer (a) re-list the matter for a preliminary hearing …"
The further Affidavit was duly sworn on 3 March 2000. The re-amended grounds of appeal are at page 7a, b and c of our bundle.[5]Having heard Mr Gaskill's submission this afternoon on a further preliminary hearing of the Appeal and considered certain pages of the Respondent's bundle of documents produced for the June Hearing (particularly pages 25 & 27-29), at the hearing of this appeal we are satisfied that issues will need to be determined as to the legal result of the events which took place at the crucial meeting of 2 March 1999, which preceded the June hearing. The EAT may also have to determine some factual issues as to events at the June Hearing. Mr Gaskill submitted that from the Extended Reasons, it is difficult to discern that the Employment Tribunal gave consideration to making findings of fact as to what happened at the meeting, rather than a decision according to an assumption of what perhaps was intended to happen. Whilst we could set the force of the submission, it is the correctness of them may have to be determined in the Appeal.[6]In the circumstances, we conclude that the amended grounds of appeal should go forward to a full hearing but before that hearing takes place a number of other steps need to be taken. First, the Chairman should be invited to comment on the Affidavit of the Appellant sworn on 3 March 2000 and the Respondent should be invited to comment on factual matters raised in that Affidavit, and to serve and lodge an answer to the Amended Grounds of appeal.[7]The matter should then be listed for a directions hearing which might assist the parties in identifying the issues which remain at large. It would be helpful if the proposed directions hearing, if it were possible, should be heard by the same Panel as will in due course hear the substantive appeal.[8]In the light of the issues raised in the Amended Notice, we direct that the chairman be asked to produce notes of evidence of the June hearing.