MRS J MCLOUGHLIN v SUTCLIFFE CATERING (UK) LTD [2001] UKEAT 932_01_0512

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 932_01_0512

Case No Appeal No. EAT/932/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS J MCLOUGHLINAPPELLANT

SUTCLIFFE CATERING (UK) LTDRESPONDENT

Before

His Honour Judge D M Levy

Date 5 December 2001

[1]APPEARANCES For the Appellant MR PAUL MICHELL (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE D M LEVY QC: This is the preliminary hearing of an appeal by Mrs J McLoughlin from a decision of an Employment Tribunal which sat at Reading on 12 April 2001 and 21 May 2001. The appellant was then represented by her husband, the respondent by a solicitor. The issue was whether or not she had been fairly dismissed and the Tribunal decided that her claim failed. The decision was sent to the parties on 28 June 2001 and there was an appeal from that decision on 1 August 2001. Mrs McLoughlin is not here this morning; she is unwell, but her husband is here and he has had the assistance of Mr Michell on the ELAAS Scheme on one of the points raised in the Notice of Appeal.

[2]That point is this. On 21 June 2000 Mrs McLoughlin gave her notice to the respondent saying that she would work until 29 June and later on in that day, the respondents gave her a note which said:

"I wanted to talk things through properly and explain the reason behind the decision made by Paul Honey and Personnel management Sutcliffe Catering. It was decided that since your reason for leaving (as stated in your resignation) was due to not being able to work with the management team at A.W.E. It was regrettably deemed operationally beneficial for all parties to sever ties at this point and to pay you your weeks notice. You will be paid your weeks notice and the normal average overtime that you would have gained in this week, added to this you will receive 3 days from your sickness bonus. You will have already received you overtime back pay and bonus for the function 10/4/00. It is regrettable that we could not have parted under better circumstances."

[3]Mr Michell has taken us to the contract of employment of the appellant which provides under "Notice":

"you must provide one week's notice to terminate your employment during the first two year's service, thereafter, two weeks notice is required."

It deals then with the notice the company was required to give. In the course of the decision, the Tribunal said as to the period of notice:

"It was a short notice period and presumably all that she was required to give."

[4]The Employment Tribunal does not appear to have looked at the contract of employment itself. By reference to Harvey and the decision in British Midland Airways and Lewis

[1978] ICR 782

and Marshall (Cambridge) Ltd v Hamblin

[1994] IRLR 260

, Mr Michell has persuaded us that it is arguable that in fact what the Tribunal accepted as a resignation was in fact a dismissal. In those circumstances this appeal should go ahead to a full hearing.

[5]As to the other points raised by Mr McLoughlin, appearing on behalf of his wife, there are complaints of unreasonable conduct of proceedings by the employer, of prejudice inadvertently caused to the appellant by a decision of the Tribunal and that the Tribunal did not act impartially.

[6]We have carefully considered the written submissions on these points by Mr McLoughlin and we have come to the conclusion there is no matter of law contained within those which can go to a full hearing. As to the complaint that the Tribunal did not act impartially, reading the decision carefully, as we have, it seems to us that the Tribunal made sure that there was a fair trial. As to the alleged unreasonable conduct of the proceedings by the employer, the complaint turns on the refusal of the Tribunal to order, as requested by the Appellant, through her husband, disclosure of documents of the prejudice cause to the Appellant. That happened well before the hearing took place and there is a time limit imposed on parties to appeal from interlocutory decisions. The Appellant is out of time to appeal now.

[7]In the circumstances we are going to trespass on Mr Michell's goodwill and hope that he will assist the Appellant to prepare and lodge an amended Notice of Appeal which sets out the point we have identified, so that that issue can go to a full hearing. An amended Notice of Appeal is to be lodged within 7 days of today.