MRS J RIVETT v NORWICH KITCHEN CENTRE [2000] UKEAT 642_98_0111

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 642_98_0111Case No Appeal No. EAT/642/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS J RIVETTAPPELLANTNORWICH KITCHEN CENTRERESPONDENT
Before
Mr Justice LindsayDate 1 November 2000
[1]APPEARANCES For the Appellant CHERYL EDMONDS (Solicitor - Pro Bono) Messrs Steele & Co Solicitors 2 The Norwich Business Park Whiting Road Norwich Norfolk NR4 6DJ MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a preliminary hearing the appeal of Jennifer Rivett in the matter Rivett v Norwich Kitchen Centre . This morning Jennifer Rivett appears by Ms Edmonds and, of course, it is ex parte so the Norwich Kitchen Centre does not appear. On 28th January 1998 Mrs Rivett lodged an IT1 complaining of unfair dismissal. She had been employed only from 9th January 1996 to 1st October 1997, just less than 21 months.[2]On 29th January 1998 the Employment Tribunal wrote to Mrs Rivett, they said:
"The papers relating to this case have been referred to a Chairman of Industrial Tribunals (Mrs C Tribe) as a result of which you are required to show cause in writing within 14 days why your complaint of unfair dismissal should not be struck out under rule 13(2)(e) of schedule 1 of the Industrial Tribunals Rules of Procedure 1993 on the grounds that it is frivolous because the Tribunal cannot consider the applicant's under dismissal complaint having regard to the following provisions of Section 108(1) of the Employment Rights Act 1996:- "108(1) Section 94 [the right not to be unfairly dismissed] does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination"
Neither the decision of the Court of Appeal in Regina V Secretary of State ex parte Seymour Smith & Perez [1995] IRLR 464 nor that of the Employment Appeal Tribunal in Ms P Thomas –v- The National Training Partnership [1996] 15 March suggest that the former Section 64(1)(a) of the Employment Protection (Consolidation) Act 1978 (now Section 108(1) of the 1996 Act) is in breach of European law for dismissals which take effect in 1995 or 1996."[3]On 2nd February 1998 Mrs Rivett's solicitors suggested that the proper course would be to adjourn the case. However, by a decision sent to the parties on 12th March 1998, Mr Christopher Ash, the Chairman sitting alone, held as follows: "By virtue of the power conferred on me by Rule 13(2)(e) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 (as amended) I hereby strike out the complaint of unfair dismissal the applicant having failed to show cause why such an order should not be made." and summary reasons only were given for that decision.[4]On 2nd April 1998 Mrs Rivett asked the Employment Tribunal for extended reasons and referred to Davidson v City Electrical Factors Ltd as being a case which, she argued, precluded any striking out pending the outcome of the Seymour Smith litigation which was the current before the European Court of Justice.[5]On 9th April 1998 the Chairman indicated that the summary reasons that he had given could stand as extended reasons.[6]On 17th April 1998 Mrs Rivett lodged a Notice of Appeal raising this as a ground as follows:
"On 12th March 1998 the Appellant's claim for unfair dismissal and written reasons for dismissal were struck out by the Industrial Tribunal as showing no cause of action and being frivolous, on the basis that the Appellant cannot show a qualifying period of two years continuous employment as provided by S.108 Employment Rights Act. The Applicant can only show a period of employment of one year and nine months. This Order disregarded the Decision of Davidson v City Electrical Factors Ltd EAT, 5.1.98 (1019/97) that in any unfair dismissal case where the qualifying period for employment is admitted to be between one and two years, the claim must be stayed pending the outcome of the Seymour Smith case."
[7]On 24th October 1998 in Lewis v Airflow and another 17 cases, I directed there to be directions hearing at which not only those 18 cases but, as far as possible, all other Seymour Smith -dependent cases, at least those referring to dismissals in 1996 and 1997, should be gathered together and appropriate directions be given for their hearing. None of the other cases, as I recollect them, expressly raises the question as to the Employment Tribunal's power to strike out, but several of them are cases where there had been a striking out. Mrs Rivett will need to consider joining in the directions hearing. So far as concerns information as to the directions hearing, the solicitors for the 18 applicants in those other cases are Messrs Rowley Ashworth, 247 The Broadway, Wimbledon, London SW19 1SE, telephone number: 020 8543 2277. The reference at that firm is Mr Neil Johnson. His reference for this particular gathering of 18 cases is: NRJ/JB/ Seymour Smith.[8]The matter will be adjourned generally with a view to Mrs Rivett arranging to attend and be represented, if she needs separate representation, at the directions hearing. Once she has learned details, no doubt from Messrs Rowley Ashworth, if, for any reason, she finds that in her view it is inadequate or unacceptable to proceed with the other cases and in conjunction with them, then the thing to do would be to attend at the directions hearing and explain at it what prejudice or embarrassment or whatever other complaint she has that would attend upon her being joined with the other cases. But she will need to make a fairly compelling case if her case is to be taken entirely separately. We adjourn the matter for her to consider coming back at the directions hearing and she will now have information as to which solicitor to approach to find out how that is being conducted. In any event, if there is any difficulty she can contact the Employment Appeal Tribunal about arrangements being made for the directions hearing.