Appeal No. EAT/0573/03 & EAT/0574/03 DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 October 2003

Before
HIS HONOUR JUDGE PROPHET
MR D CHADWICK
MR K EDMONDSON JP

MR D J WISE	APPELLANT

LONDON BOROUGH OF REDBRIDGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D J WISE
(the Appellant in Person)	
For the Respondent	MS MURPHY
(of Counsel)
Instructed by:
London Borough of Redbridge
PO Box 2
Town Hall
Ilford
Essex IG1 1DD	

HIS HONOUR JUDGE PROPHET

1	Mr Wise had given long service to the Borough, having started with them in May 1985.  He was dismissed from his employment as a County Park Warden with effect from 4 February 2002.  He submitted an Originating Application to the Employment Tribunal at Stratford on 22 April 2002, complaining of a constructive dismissal, by which presumably he meant a constructive unfair dismissal.  He also added a further claim of victimisation but that was later withdrawn.  In his Originating Application he named a Mr Lister from UNISON as his representative.

2	The Borough resisted his complaints.  Box 5 of the Notice of Appearance, which asks if the date of employment indicated by the Applicant was correct, is rather oddly perhaps, left blank.  However, in the Notice of Appearance it was indicated that following an earlier warning Mr Wise had been dismissed on 9 May 2001 for misconduct but then subsequently reinstated following an internal appeal with effect from 20 November 2001.

3	The case was the subject of a directions hearing on 4 October 2002 before Mr J Cole, a Chairman of the Employment Tribunal, which resulted in a helpful summary of the issues together with directions contained in a letter to both parties dated 8 October 2002.  Nothing appears to have been raised at that directions hearing in respect of any matter which might arise from the earlier dismissal and subsequent reinstatement of Mr Wise.  Indeed, the letter indicated that the case was due to be heard on merits over two days and it was indeed listed for 19 and 20 December 2002.

4	However, on 19 December the Employment Tribunal with Mr Q Barry as the Chairman accepted a renewed request from Mr Wise (by that stage unrepresented) for a postponement of the hearing.  That new hearing was fixed for 20 to 21 March 2003.

5	However, when the Employment Tribunal convened on 20 March 2003 with Mr Duncan as the Chairman and Mr Matthias as the lay member, the parties having consented to a two-person Tribunal, the case was actually disposed of on the first day.  The reason for that was that Mr Duncan raised a preliminary issue as to the Applicant’s length of service, arising from the indication given in the Notice of Appearance of a gap in the Applicant’s service from 10 May 2001 to 20 November 2001 arising from the earlier dismissal and subsequent reinstatement, notwithstanding that the Borough had not specifically pleaded a jurisdictional point in their Notice of Appearance.

6	Pausing there, we accept Ms Murphy’s point made to us today that the Employment Tribunal cannot be criticised for taking the jurisdictional point on its own initiative.  However, if they do that they have to afford both sides an adequate opportunity of dealing with that matter.

7	The outcome was that the case was adjourned in the morning and resumed again at 2.00pm.  After about half an hour, no actual evidence as such being called by either side, but both Mr Wise and Ms Murphy answering some questions from the Chairman, the Tribunal decided that Mr Wise did not have a year’s service and consequently he could not have the merits of his unfair dismissal complaint considered: see section 108 of the Employment Rights Act 1996.

8	The Employment Tribunal stated at paragraph 9 of their written reasons that they did not hear any evidence specifically on the issue of whether the period between 10 May 2001 and 20 November 2001 affected Mr Wise’s continuity of employment, although at paragraph 6 they record Mr Wise indicating that he was reinstated and his salary retrospectively paid.

9	It seems to us that there were issues here which required careful consideration by the Employment Tribunal, including in particular the law relating to continuous employment, and the effect of a reinstatement on that continuity and that that could not properly be done unless both sides had had a full and proper opportunity of dealing with that issue.

10	The point arose unexpectedly at the hearing on 20 March 2001, when it had never been raised by the Borough at any earlier stage, despite there being a directions hearing and presumably also there being an opportunity to do so, if they had so wished, at the Barry hearing.

11	We are not satisfied that there was a satisfactory hearing on this issue.  Whilst we can understand that Mr Duncan would be anxious to have the matter finalised at the earliest reasonable opportunity, all the members of this Tribunal are satisfied that, bearing in mind that Mr Wise was unrepresented at this hearing and the matter did not come to anyone’s attention including Counsel for the Borough until the beginning of that hearing.  A proper period of some weeks ought to have been granted by the Tribunal in order to have been fair to both sides.  An adjournment granted for such a period would have provided Mr Wise with an adequate opportunity of obtaining legal advice on how he stood in the matter of continuous employment.  That would also have enabled the Borough’s Counsel to take instructions on such important matters as what was the normal practice in the Council if an employee was reinstated on appeal following a dismissal; and indeed, what actually happened in Mr Wise’s case.  Why, for example, as it appears, he was retrospectively paid on his reinstatement?
13	Matters of continuous employment and the law relating to it can be difficult and justice required that those matters should be properly addressed before a proper decision can be reached on those matters.

14	Accordingly, we allow this appeal and the case is remitted to a differently-constituted Employment Tribunal for reconsideration.

15	Both sides are at liberty to make any further requests to the Employment Tribunal for directions or amendments prior to that hearing.