Appeal No. EAT/53/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9 September 1994

	Before

	THE HONOURABLE MR JUSTICE TUCKER

	MR T S BATHO

	MR P SMITH

MR N DEAKIN & MR A T HILL	APPELLANTS

WILLIAM GIBBONS & SONS LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MS J HEAL
(OF COUNSEL)
Messrs Kershaws
Solicitors
160 Brompton Road
Knightsbridge
SW3 1RP

	

	MR JUSTICE TUCKER:  This is a preliminary hearing ex parte of appeals by two employees, Mr Deakin and Mr Hill from a decision of an Industrial Tribunal sitting at Birmingham and held on four days, two of them in June and two in August of last year.
The decision of the Tribunal so far as these two Appellants are concerned was that they were not unfairly dismissed and that their applications fail and are themselves dismissed.

	The Tribunal dealt fully with the matter and it might be thought by some over fully with the matters put before them.  It might be thought that the decision is set out at unnecessary length and without any attempt at selectivity.  

	The Notice of Appeal as originally drafted has given rise to difficulties and it is because of those difficulties that the matter was listed as a preliminary hearing because on the face of it it seemed difficult to see what complaint could be justified before this Appeal Tribunal.  There was no real error of law save possibly one set out in paragraph (f) of the Notice of Appeal and there was on the face of the Notice no suggestion that the Tribunal had reached a perverse decision.

	Miss Heal who has appeared before us put in an amended notice.  Even then there was no suggestion of perversity but as she developed her submissions it became clear that that was indeed the main plank of the Appellants' appeal.  We have been referred to Graham v ABF Ltd [1986] IRLR 90.  We say no more about it on the merits but we are just persuaded that we ought to allow this appeal to go forward to a full hearing.  That decision on our part is not to be taken as any indication as to success or otherwise of the appeal which will be heard inter partes.  The employers will have the opportunity of being represented and heard by the Appeal Tribunal.  But we must comment on the Notice of Appeal even as amended.  It is not for us of course to make the case for the Appellants but in our view reconsideration should be given to this document.  It might be thought on reflection wiser to retain (a) that the decision was inconsistent with the evidence presented.  It might be thought on reconsideration wiser to preserve (f) that the view of the Tribunal is that consultation would have made no difference is an error of law and before the matter can be properly considered there must be an allegation, if it be the Appellants' case, that the Tribunal acted perversely.

	We emphasise we are not saying that that is our decision.  Not at all.  We are only considering the matter as a preliminary hearing but if that is to be the case it must be clearly set out in the Notice of Appeal and we have Miss Heal's undertaking to do so.  With those observations we allow the matter to go forward.