Appeal No. UKEAT/0365/10/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 December 2010 

Before
HIS HONOUR JUDGE McMULLEN QC
MS G MILLS CBE
MR J R RIVERS CBE

MR N A INSAIDOO	APPELLANT

METROPOLITAN RESOURCES NORTH WEST LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - APPELLANT ONLY

	APPEARANCES

For the Appellant	Written Submissions	
For the Respondent	MS SKY BIBBI
(Representative)

Written Submissions and oral argument on directions 	

SUMMARY
PRACTICE AND PROCEDURE – Chairman alone

A pay claim was properly decided by a Judge alone correctly applying the law.  But he had no jurisdiction to hear an unfair dismissal claim: ETA s4 requires a three person tribunal. This point remitted to a full hearing, unless the Respondent consents.

HIS HONOUR JUDGE McMULLEN QC

1.	This is a preliminary hearing to be determined by a three person Employment Appeal Tribunal as ordered by Underhill P.  The Claimant is not present.  The President made notes for the benefit of the three of us today.  Since the Claimant is not present, he being in Ghana, and since the Respondent is represented by Ms Bibbi who has done commendable written submissions as ordered by the President and of course does not formally have a right of input into this, we will give the reasons that the President has given: - 

“2. The boxes ticked in the ET1 are:
(5) Unfair dismissal
(8) Other payments
(9) Other complaints
Unfair Dismissal
3. It seems, though the ET1 does not say so, that the Claimant resigned, so the dismissal relied on is constructive: see Reasons para. 18.  Box 5 pleads eight complaints which are presumably the conduct relied on as justifying the resignation; but some of them are potentially claims in their own right (see below).
4. It was the Respondent’s pleaded case that the Claimant had less than a year’s service so that he had no right to claim for unfair dismissal.  He apparently conceded this on 10.3.09: see para. 6 of the Reasons.  But no-one at the time fastened on this concession and the case went through two CMDs on the basis that unfair dismissal was in play.  A two-day hearing was fixed for 16 and 17 November.  At the eleventh hour the Respondent spotted the point and on 12 November e-mailed the Tribunal asking for the claim to be struck out.  The next day, 13 November, EJ Reed ordered a strike-out and altered the listing to one hour on 16 November.  The e-mails in question were not with the N/A and obtaining them has taken a long time – hence the delay (I am bound to say that, given the history, I think it was precipitate for Judge Reed to strike out unilaterally: it would have been fairer to allow the point to be taken as a preliminary point on 16 November.  But that is water under the bridge.)
5. The Claimant was not going to attend the hearing – he was in Ghana – but he was going to send witnesses.  He says – N/A para. 10 – that in consequence of the Tribunal’s order he stood them down.
6. Notwithstanding the strike-out the unfair dismissal claim was considered at the hearing (before Judge Shotter) after all, on the basis that the one-year limit was not applicable insofar as the Claimant’s claim could/should be read as one of dismissal for asserting a statutory right, namely some of the rights asserted under box 5 (s. 104).  It’s not clear who raised that.  It’s not even clear that the Judge was aware of the strike-out, although surely she must have been?
7. The unfair dismissal claim is addressed at paras. 26-30 of the Reasons.  The language and the analysis is a bit muddled, but the reasoning seems to be (a) that the claim under s. 104 failed because the Claimant’s reason for resigning was not any conduct by the Respondent associated with his assertion of a statutory right but the fact that he had been asked for proof of his immigration status; and (b) that the Tribunal had no jurisdiction to entertain any “ordinary” claim of unfair dismissal.  In practice, therefore, the Tribunal did accept jurisdiction in respect of the s. 104 issue but dismissed the claim on the merits, i.e. on the basis that there had been no (constructive) dismissal.
8. What the Claimant says is that, that being so, he stood down his witnesses under a misapprehension: he was told unfair dismissal was not on the agenda, but it was.
9. That must raise an (at least) arguable case of procedural unfairness.  But whether there was any substantial injustice depends on what the witnesses could have said on the dispositive issue.  The issue is the Claimant’s own state of mind, i.e. what he was resigning in response to; and it seems rather unlikely they could have assisted on that; but I couldn’t rule 3 it on that basis.  (I’m not sure also what orders there were for witness statements and whether he had complied with them.)”

2.	In the light of that we have considered Ms Bibbi’s submissions.  But a seismic flaw runs through this which, with respect, the President did not see and nor did Ms Bibbi.  It is that this has been the determination of an unfair dismissal claim by a one person Tribunal and there is no jurisdiction for that (see Employment Tribunals Act 1996, section 4).  

3.	The matter must inevitably return to the Employment Tribunal for a determination by a three person Tribunal with a different Judge.  The appeal could be allowed if this were a full hearing.  At the moment we do not have power to do that and, having heard Ms Bibbi, what we propose to do is to order a full hearing and to give the Respondent 14 days to provide its answer and to say whether it is prepared to agree that this appeal should be allowed by consent and if so then the direction will be that this case be heard as we have said above.

4.	The President also dealt with what are described as ‘other payments’ and he said this:

“11. There are two claims in box 8.  (1) is hopeless.  (2) is a wages claim, particularised in a separate sheet.  It was broken down by the Tribunal into (a) a claim about unauthorised reduction in hourly rate and (b) a claim about holiday – issues 2 and 3 at para. 7 (probably this had been clarified at a CMD).  The holiday claim is clearly dealt with at para. 31, albeit briefly; but I can’t see where the reduction in hourly rate claim is addressed (unless it is the minimum wage claim mentioned at the end of para. 31, but that seems different).
12. To confuse matters further, the final sentence of para. 31 rejects, summarily, claims about the minimum wage and excessive working hours which do not appear to be pleaded and are not trailed elsewhere in the Reasons.”

The President indicated that these points may not be live on appeal.  In our judgment if they are, they are hopeless as he indicated the Tribunal has given reasons for this.  The Judge-alone Tribunal was empowered to deal with pay claims, as they are customarily known, as a single Judge and therefore the jurisdictional issue does not arise.  

5.	We respectfully agree with the President and see nothing in the Claimant’s written submissions, which we have taken account of most fully, and consider that they will fail.  

6.	The Notice of Appeal is dismissed save for the Notice of Appeal in respect of unfair dismissal.  That matter will be sent to a full hearing and the Respondent has 14 days to consider whether it would consent.