Appeal No. EAT/685/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 17 October 1994

	Before

	THE HONOURABLE MR JUSTICE PILL

	MR A C BLYGHTON

	MISS A MACKIE OBE

MR B CHARLES	APPELLANT

G & P SNAPE	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M KNOWLES
Representative

	

	MR JUSTICE PILL:  This is an appeal against the unanimous decision of the Industrial Tribunal held at Shrewsbury on 16 May 1994.  

	The applicant, Mr B Charles, claimed that he had been unfairly dismissed.  The relevant facts can be stated briefly.  Mr Charles worked for a baker, Mr Snape, who operated a small bakery just outside Crewe.  Mr Snape was helped in his business by his wife and two other bakers, one of whom was the Applicant.

	In August 1993, which is over three years after he commenced his employment with Mr Snape, Mr Charles took his summer holiday.  He was offered a job with a new employer, which was to begin on 6 September 1993.  On 16 August Mr Charles returned from holiday and gave three weeks' oral notice to Mr Snape.  Mr Snape gave no immediate response but on 21 August asked Mr Charles if he could stay on another two weeks to cover until the other baker, Mr Riddle, returned from his holiday.  The Applicant refused, whereupon Mr Snape replied:
		"That is not good enough;  I can't afford to pay you and a new employee.  You will have to leave a week early."

	Nothing was said beyond that until 28 August when Mr Snape paid Mr Charles in the usual way and included a payment of holiday pay.  Mr Charles asked whether he was wanted for the extra week and received the answer "No".

	On those facts, the Tribunal found that Mr Charles had been dismissed.  They were referred by Mr M Knowles, who operates a personnel advisory service at industrial tribunals, to the case of British Midland Airways Ltd v Lewis [1978] ICR 327.  

	Having found that there had been a dismissal, the Tribunal went on to consider whether the dismissal was unfair.  That was the claim which had been brought and it was brought under section 57 of the 1978 Act.  Upon that question the Tribunal considered the evidence before them.  Having referred to Lewis they stated that each case must depend on its own facts.  They attached importance to the fact that Mr Charles knew that he was putting his employer in difficulty and refused to delay his departure when requested.  They had regard to the size and administrative resources of the undertaking and all the other circumstances.  They were satisfied that the employer was acting reasonably in treating this as a sufficient reason for dismissal.  They held that the employer was acting within the band of reasonable responses of a reasonable employer and dismissed the claim for unfair dismissal.  The Tribunal added at paragraph 8:
		"It is right to observe that the case has throughout been treated as one of unfair dismissal and nothing more at Mr Knowles's insistence both at the hearing and in correspondence with the Tribunal Office beforehand."

	On behalf of the Appellant, Mr Knowles, who appears before this Tribunal as he did before the Industrial Tribunal, accepts that the dispute is about one week's wages.  He submits that Mr Snape was not entitled to end the payment of wages at the date he did.  A further week's wages was required.  Mr Knowles relies upon section 49 of the Employment Protection (Consolidation) Act 1978, which provides in subsection (1):
		"The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed ...

		(b)	shall be not less than one week's notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years;"

	Mr Knowles submits that because his client had been employed for three years, he was entitled to three weeks' wages when the employment was terminated and he was only paid for two weeks.

	The further point is made in the notice of appeal is that the Chairman of the Tribunal conducted the proceedings incorrectly.  Two points are made.  First, that the written statement of Mr Snape was allowed by the Chairman not to be read out under oath but to be noted.  Mr Knowles accepts that he was permitted as, indeed, he should have been, to cross-examine Mr Snape.  It is further claimed that proceedings were unfair in that after he, Mr Knowles, had made his final submission and he was entitled to the last word on behalf of Mr Charles, the Chairman allowed Mrs Snape to make further comments to him.  

	Realistically, before this Tribunal and, frankly, Mr Knowles says that he accepts that these procedural problems, had they been dealt with in the way which Mr Knowles says they should have been dealt with, would not have made any difference to the result and he accepted that he did not think that they were substantial, though clearly Mr Knowles does feel aggrieved about the way he was treated on the day and what he particularly has mentioned today is that the Chairman used expressions, such as "storm in a teacup" and by reference to Mr Snape, "He is not a lawyer".  We deal with that aspect of the case immediately and noting, indeed, commending the frankness which Mr Knowles has shown in putting these points into perspective.  We cannot accept that the hearing was unfair.  Regard is necessarily had to the fact that people such as Mr and Mrs Snape were unfamiliar with Tribunal proceedings and a degree of informality is acceptable.  We cannot begin to find that the result of the case has, in any way, been tainted by procedural defect.

	In a letter dated 6 October the Chairman refers to these points and we have his comments in mind in the conclusion which we have reached.

	The Chairman has also commented upon the claim for the week's wages and the substantive ground for this appeal and the Chairman has noted as follows in his letter of 6 October:

		"Naturally regret that Mr Knowles should feel aggrieved by my conduct at the proceedings but he gave no such indication at the time.  Frankly my feeling is that he thought he must succeed in unfair dismissal once we found a dismissal.  I hope I may add that I put that in para 8 of the decision because Mr Knowles was adamant that the case was one of unfair dismissal.  It seemed to me that had it been presented as an alternative under the Wages Act we might have been able to help the applicant.  All he seemed to want was the week's wages he was missing between the two employments."

	Mr Knowles has been adamant before us, as he plainly was before the Industrial Tribunal, that his claim is one for unfair dismissal.  Having considered his submissions and the reasoned decision of the Tribunal, we are satisfied that the Tribunal were entitled to reach the conclusion which they did upon the evidence and to conclude that the dismissal was not unfair within the meaning of that term in the 1978 Act.

	Mr Knowles' reliance upon section 49 is, in our judgment, misconceived.  We have referred to the relevant provisions.  Section 51 provides:
		"If an employer fails to give the notice required by section 49, the rights conferred by section 50 (with Schedule 3) shall be taken into account in assessing his liability for breach of the contract."

	The question as to what claim is available to an Applicant when he is not given the notice required by Section 49 has been considered by the House of Lords in the case of Westwood v Secretary of State for Employment [1985] ICR 209.  We refer, in the hope that it may be helpful to Mr Knowles, to the statement in Harvey at section A, paragraph 1229:
		"There was some confusion over the nature of the remedy available to an employee whose employer failed to give due statutory notice.  In addition to stipulating the minimum period of notice required to terminate the contract ... the Act goes on to provide that if notice is given the employee shall be entitled to certain minimum wages whilst servicing out his notice ... and that if no notice is given ... then the employee is entitled to bring into account the minimum wages he would have earned under Sch 3, but he brings them into account in an action for breach of contract..." 

		[1230]  The view expressed by the EAT in Secretary of State for Employment v Wilson [1978] ICR 200, that the employee's remedy in the case of his employer's failure to give due notice (statutory or otherwise), is an action for breach of contract was specifically approved by the House of Lords in Westwood ...  In effect, the statutory minima are incorporated into the contract ... even if the contract is partly or wholly statutory ...; but the employee sues on his contract as amended by the statute, and not upon the statute itself."

		[1308]  The House of Lord's judgment in Westwood has finally resolved the doubts as to the true nature of the right under s 51.  To summarise, therefore, it appears settled that:

		(a)	whether the employee sues under s 50 or s 51, he sues on his contract, and

		(b)	he takes his case to the ordinary courts, not the tribunal;

		(c)	whether he serves out his notice or is dismissed without due statutory notice, he gets unliquidated damages subject to mitigation;

		(d)	the National Insurance Fund (by s 122) guarantees the sum due under s 50 or s 51."

	As we have said, this claim was put on the basis of unfair dismissal.  We do not need to go on to deal with questions as to whether a claim under the Contract may be brought, by virtue of statutory provisions now brought into effect, before an Industrial Tribunal.  This claim was put, and adamantly put, on the basis of an unfair dismissal.  The case of Westwoood establishes that unfair dismissal does not arise in circumstances such as these when the complaint is that the full notice required under section 49 of the 1978 Act has not been given.  The claim for wages upon a claim for unfair dismissal was, in this case and upon the findings of the Tribunal, one which could not succeed.  

	This is a preliminary hearing.  We have unanimously come to the conclusion that the appeal should not proceed to a full hearing and should be dismissed at this stage.