THE SCOTTS COMPANY(UK) LTD v MR J BUDD [2001] UKEAT 0823_01_1611
[1]APPEARANCES For the Appellant MR MICHAEL DUGGAN (of Counsel) MR JUSTICE MAURICE KAY This preliminary hearing raises a short, but in our judgement, arguable point about the contractual notice entitlement of Mr Budd.[2]For reasons to be found in Sections 87 and 88 of The Employment Rights Act 1996 , it is crucial to know whether his notice entitlement was twelve weeks or three months. We have come to the view that the approach of the Employment Tribunal, whilst correct in its understanding of the Act, may be susceptible to challenge when consideration is given to the application of the Act to the circumstances of this case.[3]Mr Duggan, who appeared in the Employment Tribunal, informs us that the decision in paragraph 24 that the staff handbook had consensually varied the contract of employment was not something that had ever been advanced in the hearing by way of submission on behalf on Mr Budd, nor had it ever been canvassed in evidence. Indeed prior to the hearing the Tribunal had indicated that it wished to see submissions on the point of contractual notice in this case. Mr Duggan provided written submissions maintaining the position which he wishes to maintain now. They were not responded to by Counsel appearing on behalf of Mr Budd and according to Mr Duggan, that approach to the contract was never gainsaid in the proceedings.[4]In all these circumstances, it seems to us that the matter is deserving of a full hearing and it will go forward for one, listing category C for 2 hours with usual directions for the skeleton arguments. Mr Duggan's case is that Chairman's Notes are not needed because there was never anything said about this in the course of evidence or submissions. At the moment we are not minded to bespeak Chairman's Notes but if the other side take a different view as to what was said then they ought to have liberty to apply for an order that Chairman's Notes are ordered.