Appeal No.	 EAT/1140/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 March 2002

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR I EZEKIEL
MR N D WILLIS

THE DOLBY HOTEL LIVERPOOL LTD	APPELLANT

MR K F FARLEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING EX PARTE

Revised

	APPEARANCES

For the Appellant	MR RODERICK MOORE
(of Counsel)
Messrs Cobbetts Solicitors
Ship Canal House
King Street
Manchester
M2 4WB	

THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)

1	We have before us by way of a Preliminary Hearing the appeal of The Dolby Hotel Liverpool Ltd in the matter The Dolby Hotel Liverpool Ltd v Mr K F Farley.  Today the Appellant company has appeared before us by Mr Roderick Moore.

2	On 20 February 2001 Mr Farley put in an IT1.  He failed to fill in Box 1 of the IT1 which is where one has to set out the type of complaint that is made but he said that he had been employed from October 1998 to December 2000 and it seemed to be an allegation of unfair dismissal of the constructive dismissal variety.  It was also a claim for payment.  On 13 March 2001 an IT3 was put in by the company.  It admitted to some confusion about exactly what was being claimed and one can understand that that confusion should exist.  

3	At all events, the matter went forward to a hearing on 4 August 2001 at the Employment Tribunal.  On 9 August the decision, with Extended Reasons, was sent to the parties.  It was the decision of the Tribunal at Liverpool under the Chairmanship of Mr Homfray Davies.  The unanimous decision of the Tribunal was that, firstly, the correct name of the Respondent is as we have already mentioned.  Secondly, that the Applicant was unfairly constructively dismissed.  Thirdly, a basic award of £406 was made and a compensatory award of £1,022.  Fourthly, it was held that the Respondent company was in breach of contract by failing to pay the Applicant his due notice pay but no award of damages was made because it was subsumed in the compensation award.  Fifthly, and lastly, the Respondent was held not to have made an unauthorised deduction of wages in respect of any bonus payment.

4	On 19 September a Notice of Appeal was lodged on behalf of the company.  It sets out grounds of appeal.  It was settled by Mr Moore and has four main paragraphs each setting out a separate ground.  All of those grounds seem to us to be arguable, and, of course, at this stage, all we are concerned about is whether arguable error of law is perceptible in the grounds.  In addition, it may perhaps be argued whether the Employment Tribunal’s understanding of the implied term of trust and confidence - see it’s paragraphs 3.7(1) and (4) – that accords with the description of the implied term given by Lord Nicholls in Malik v Bank of Credit and Commerce International SA [1997] IRLR 462 at paragraphs 8, 13 and 14, where it has to be noted Lord Nicholls begins by saying that the employer is not without reasonable and proper cause to conduct itself in a manner to destroy or seriously damage the relationship of trust and confidence.  Whether that is already sufficiently indicated in the grounds of appeal one might doubt.  If, on reflection, Mr Moore feels that that extra ground is worth running and is not sufficiently set out already, then we would give Mr Moore leave to add it by amendment.  We will discuss with him how long he needs to consider the point and, if necessary, to amend.  Subject to that relatively small addition, all grounds of appeal may go forward to a full hearing.