GCN (SCOTLAND) LTD v PETER CONNOR [2003] UKEAT 0012_03_2608
[1]APPEARANCES For the Appellants Mr P Santoni, Solicitor Of- Messrs Freelands Solicitors 139 Main Street WISHAW ML2 7AU For the Respondent No Appearance Nor Representation LORD JOHNSTON: This is an appeal at the instance of the respondents against a preliminary determination by the Employment Tribunal. The Tribunal had jurisdiction to entertain a claim under section 94 of the Employment Rights Act 1996 by reason of continuity of employment.[2]Mr Santoni, who appeared for the respondents, referred us to the substance of the decision of the Tribunal which relates to the Employment Protection (Continuity of Employment) Regulations 1996.[3]In their judgment, the Tribunal directed their minds to the substance of those Regulations and determined the matter in favour of the employee.[4]The main point made to us by Mr Santoni, was that neither party, at the hearing before the Tribunal, made any reference to the Employment Protection (Continuity of Employment) Regulations 1996 and that, accordingly, the Tribunal had proceeded to address the matter on its own volition and without hearing parties on the subject. One very substantial result of this was that Mr Santoni was not able to make submissions to the Tribunal on the issue of continuity or employment in fact in relation to the Regulations, and, particularly, whether there was any causal connection between the offer to re-engage and the claim being made by the employee for unfair dismissal.[5]We were referred to Albion Hotels (Freshwater) Ltd v Maia e Silva [2002] IRLR 200 and County Council of Hereford & Worcester v Neale [1986] IRLR 168 both of which deal with the situation where and the Tribunal decides the matter on authorities or submissions not presented to them.[6]We are entirely satisfied that as a general question of law where a Tribunal proceeds down that path, there is a major likelihood of substantial procedural unfairness and we are satisfied in this case that has occurred. We therefore need take the matter no further. We consider that the approach of the Tribunal for this reason is flawed and the decision cannot stand. It is very unfortunate that the application for review was not granted as it would have resolved the problem.[7]We therefore offer no further view as to the interpretation of the Regulations at this stage.[8]In these circumstances the appeal will allowed and the case will be remitted to a fresh Employment Tribunal for a rehearing on the preliminary issue.