MR D GRIFFITHS v BASEBUY LTD T/A EISENGGER [2002] UKEAT 1469_01_1906

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1469_01_1906

Case No Appeal No. EAT/1469/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D GRIFFITHSAPPELLANT

BASEBUY LTD T/A EISENGGERRESPONDENT

Before

Ms Recorder Cox

Date 19 June 2002

[1]APPEARANCES For the Appellant MR D GRIFFITHS (the Appellant in Person) MS RECORDER COX QC We deal with this appeal today by way of Preliminary Hearing. The Appellant, Mr Griffiths, appeals from a decision of the London (South) Employment Tribunal, promulgated on 27 September 2001, dismissing his complaint of unfair dismissal. The Appellant's complaint was that his dismissal was automatically unfair by virtue of section 104 (1)(b) of the Employment Rights Act 1996 .

[2]He had commenced employment as a Store Manager on 3 July 2000 and was dismissed just over three months later on 29 September 2000 for reasons that the Tribunal identify as reasons which were far from clear. His case was that the principle reason for his dismissal was that he had alleged that his employer had infringed a relevant statutory right, namely a failure to provide him with written particulars of his employment, pursuant to section 1 of the 1996 Act.

[3]The Employment Tribunal found the following facts, which are set out at paragraph 5 of their reasons:

"The Applicant was never provided during his employment with a statement of his terms and conditions that would have complied with section 1 of the ERA. We accept his evidence that he made oral requests to his line manager for such a statement both on his own behalf and those of his staff. He also made a written request in a memo dated 17 September 2000. We find that he was stalled by his manager who promised that written particulars would be forthcoming in the not too distant future."

[4]They directed themselves that the first matter they had to consider was whether these oral and written requests amounted to an allegation that his employer had infringed his statutory right. They concluded as follows, as set out in paragraphs 6-8: (6) "In our view an employee must make it clear that the employer has infringed a statutory right. If an employee were able to invoke S.104(1)(d) simply by asking for an employment contract this would allow many employees to by-pass the requirement of twelve months service that applies in ordinary unfair dismissal cases. 5 (7) We acknowledge that there may be circumstances where repeated requests for a contract of employment would constitute an allegation. It is in our view a matter of fact and degree. We do not believe on the facts of this case that the requests he made ever mounted to an "allegation". (8) We find that the Applicant was still at a position where he was requesting his terms and conditions and still had the expectation that they would be provided by his employer at some point. In short, he had not got to the stage whereby he had made any "allegations" in the normal sense of the word against his employer. In the absence of anything that could constitute an allegation his claim must fail as he does not have the necessary service to claim unfair dismissal under any other section." His claim for unfair dismissal was therefore dismissed.

[6]The Appellant appeared in person below and he settled the Notice of Appeal himself, stating the grounds of his appeal to be that the Employment Tribunal misapplied both the facts and the law and arrived at a perverse decision. He has also submitted a file of documents containing at its front a document headed "Interlocutory Applications [Preliminary Hearing]" which we have taken to be his skeleton argument for the purposes of this Preliminary Hearing. We have read those documents very carefully.

[7]Mr Griffiths has attended today and addressed us on these arguments and explained the points which he makes in relation to his criticisms of the Tribunal's decision. Essentially, he complains firstly, that the Tribunal wrongly concluded, on the evidence, that he had not got to the stage whereby he had made any "allegations". Secondly, he complains that they heard only his evidence before deciding against him on unfair dismissal and did not go on to consider the reasons for and the fairness of that dismissal. Finally, he alleges that the decision was perverse.

[8]In his Notice of Appeal the Appellant also complained, originally, that the Employment Tribunal had failed to allow an application to amend his claim by adding a claim of breach of contract. However, that matter was not pursued, either in his written skeleton argument, or before us today in his oral submissions and we therefore make no further reference to that matter.

[9]In relation to his main challenge to the Employment Tribunal's decision, at this stage we must decide whether there are any arguable errors of law in the Tribunal's decision. Having considered the complaints made about the Tribunal's approach we are unpersuaded that there are any such errors. This Tribunal were clearly most sympathetic towards the Appellant whom they described as dignified and honest and observed that the Respondent's failure to provide him with written particulars was appalling.

[10]Having seen and heard from Mr Griffiths this afternoon we would wish to endorse the view about him expressed by the Employment Tribunal. However, in our view the Tribunal approached the matter correctly, as a matter of law, and were right to describe the question, as to whether or not there had been an allegation of an infringement of a statutory right, as being a matter of fact and degree.

[11]That being so, we consider that, although another Tribunal might have arrived at a different decision, this Tribunal were entitled on the facts found in this case to conclude that the requests made did not amount to an allegation. In doing so, they acknowledge that there might come a point in such cases where that line was crossed, but having considered it they decided that that line had not been crossed in the present case.

[12]Having therefore determined that the Appellant had failed to pass first base, in relation to his complaint of unfair dismissal, the Tribunal, in our view, were entitled, indeed obliged, to dismiss his claim in view of the fact that he did not have the relevant service to enable him to complain of ordinary unfair dismissal, as it is known.

[13]Whilst we have considerable sympathy for this Appellant, and the situation in which he found himself, we see no arguable error of law in the Tribunal's decision on that matter and we therefore dismiss this appeal.