MR GERRY HODES v MARKS & SPENCER PLC [2000] UKEAT 716_00_0512
[1]APPEARANCES For the Appellant MR M TRAFFORD (Of Counsel) Instructed by Messrs Boodle Hatfield Solicitors 61 Brook Street London W1Y 2BL JUDGE ALTMAN This is an Appeal from the decision of the Employment Tribunal sitting at London (South) on 13 April 2000. It comes before us by way of Preliminary Hearing to determine if there is a point of law capable of full argument before the Employment Appeal Tribunal.[2]The Employment Tribunal have to deal with a large number of issues relating to unfair dismissal and the assessment of compensation. This Appeal relates to only one aspect of the calculation of compensation.[3]The issue is whether a form of benefit pay by the Respondents to their employees which seems to attract the word 'Pension' but was not an entitlement to a pension in the traditional sense of a benefit from an independent pension fund, was a contractual or non-contractual payment. The Employment Tribunal concluded it was an ex gratia and not a contractual payment and therefore fell to be deducted from the calculation of compensation. From that finding the Appellant seeks leave to appeal.[4]It seems to us that that clearly gives rise to an arguable point of law on the face of the decision. The matter is analysed in paragraphs 19 to the end of the decision and we would only make the following observations in relation to those paragraphs.[5]We note that the Respondents called no evidence before the Tribunal whatsoever. We note also from paragraph 3 of the decision that the Respondents produced no paper work surrounding the dismissal or relevant matters until the morning of the hearing when they produced some documentation, we are told that affects this matter.[6]It seems to us that there is also for consideration the evidential status of the material that was produced by the Respondents and the extent to which it could be viewed as being conclusive.[7]Furthermore it may assist the parties to refer to the recently reported case of Clark v Nomura International Plc [2000] IRLR 766.[8]The point of law that follows therefore is whether in reaching their decision that this was an ex gratia payment, the Tribunal considered the relevant evidence and secondly whether they reached a correct conclusion in law.[9]This matter will now be listed for one hour for a full hearing in Category C to and we direct that within 14 days of the promulgation of this judgment the Respondents should notify the Employment Appeal Tribunal one way or the other as to whether or not they intend to appear and argue against the Appeal.[10]That is not an indication of any view that we may have. We have no view as to the merits of this Appeal one way or the other. It is simply because of the non-evidential participation at first instance that it seems to us the Appellant, who has costs to incur on this Appeal, should know whether or not there will be a real contest[11]Further, we also direct the parties to seek to agree the amount of money at stake. We say that again not with any view as to the outcome, but mindful that one possible outcome may be that the Appeal succeeds. In that event a possible order may be based on a wish on the part of the Employment Appeal Tribunal to be able if possible to resolve the issue without further remitted proceedings. I cannot emphasise too strongly that we are not expressing any views one way or the other. We are simply seeking to provide the most expeditious result in certain eventualities.