Appeal No. EAT/83/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 20th October 1994
	Judgment delivered 6 June 1995

	Before

	HIS HONOUR JUDGE J BULL QC

	MRS M BOYLE

	MR  R H PHIPPS

MR J E PROFFITT	APPELLANT

DIGBETH COACHCRAFT	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R POWELL
(of Counsel)
Birmingham Citizens Advice Bureaux
161 Corporation Street
BIRMINGHAM B4 6PH

For the Respondents	MR R de MELLO
(of Counsel)
Hodgkins Hughes and Beal
83 Alcester Road
Moseley
BIRMINGHAM B13 8EB

HIS HONOUR JUDGE BULL QC              This is an appeal by John Edward Proffitt against the Decision of an Industrial Tribunal sitting at Birmingham on 18th October 1993 when on a Preliminary Hearing to determine whether the Applicant was qualified under S.64(1)(a) of the Employment Protection (Consolidation) Act 1978 to bring a complaint of unfair dismissal.  The Full Reasons were sent to the parties on 18th November 1993.

	The Applicant made a complaint that he had been unfairly dismissed, a contention which was rejected by the Respondent, who took as the preliminary point that the Industrial Tribunal lacked jurisdiction to entertain Mr Proffitt's complaint because he had not been continuously employed by the Respondent company for a period of not less than two years ending with the effective date of termination.

	It was agreed that the Applicant had been employed by the Respondent company as a driver in their business of body repairs to cars and commercial vehicles.  The Industrial Tribunal found as a fact that he began his employment with the Respondent company on 19th February 1990, and was summarily dismissed on 18th February 1992.  There was a dispute between the parties over the time at which he was dismissed on 18th February 1992.  The Respondent company contended that he was dismissed summarily for misconduct arising out of his failure to comply with strictly laid down procedures for the completion of an inspection form and procedures for him to inspect a pool car for damage prior to its collection.  These allegations Mr Proffitt strongly contested.

	Section 64(1)(a) of the Employment Protection (Consolidation) Act 1978 provides as follows:
		"(1) ..., section 54 does not apply to the dismissal of an employee from any employment if the employee -

			(a)  was not continuously employed for a period of not less than two years ending with the effective of termination, ..."
However, S.55(5) of the 1978 Act also requires consideration in this context for this section, as amended by Schedule 3 of the 1982 Act reads as follows:
		"(5)  Where the contract of employment is terminated by the employer and the notice required by S.49 to be given by an employer would, if duly given on the material date, expire on a later date than the effective date of termination (as defined by subsection (4)) then, for the purposes of sections 52(2), 64(1)(a), 64A and 73(3) and paragraph 8(3) of Schedule 14, the later date shall be treated as the effective date of termination in relation of the dismissal.
Section 49 sets the minimum periods of notice required to be given by an employer in order to terminate the contract of employment of someone who has been continuously employed for one month or more.  For an employee who has been continuously employed for a period of less than two years, the notice required to be given by the employer is one week.  If, therefore, that period of one week is added on for the purposes of S.64(1)(a) it follows necessarily that the Appellant has the requisite qualifying period of employment.

	The Respondent company contend that the Appellant's behaviour was such that they were entitled to dismiss him for "gross misconduct".  The Industrial Tribunal ought to have been asked to determine whether in their view there was any such conduct which would have enabled the employer to terminate the contract of employment without notice.  Were they so to find then plainly that would prevent S.55(5) from coming into operation.  The Industrial Tribunal had the benefit of the citation of a number of cases: it is most unfortunate that the case of Lanton Leisure Ltd v. White and Gibson [1987] IRLR 119 was not included amongst them for it is a case remarkably similar upon its facts and the first decision it appears dealing with the relationship between S.55(5) and S.49(5).  Lord Mayfield giving the judgment of the Employment Appeal Tribunal did not consider that Dedman v. British Building and Engineering Appliances Ltd [1973] IRLR 379 was of assistance in dealing with the present issue, and expressed the view, with which we concur that it is necessary to first of all decide whether or not there has been such conduct as would warrant termination without notice within the terms of S.49(5).

	The facts of this case are that having been employed from 19th February 1990 until dismissal on 18th February 1992, the exact dividing line may in certain circumstances be of great importance.  The Appellant claimed that he was dismissed at 3 p.m. whilst the Respondent company contended that it was at 9.30 a.m.  The Tribunal found that the Appellant did not complete a working day on 18th February 1992.  Much was made before the Industrial Tribunal of the decision in Octavius Atkins & Sons Ltd v. Morris [1989] IRLR 158.  Before us Mr de Mello conceded that he did not rely upon that decision, which related to a case of redundancy.

	For the reasons we have given we are constrained to remit this matter to a differently constituted Tribunal.  We make an order for the legal aid taxation of the costs of the Appellant.