Appeal No. EAT/1204/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 11 October 1995

	Before

	THE HONOURABLE MR JUSTICE MAURICE KAY

	MRS J M MATTHIAS

	MRS P TURNER OBE

MR J A WEST	APPELLANT

NORTH YORKSHIRE COUNTY COUNCIL	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR G MORTON
(of Counsel)
Messrs Pattinson & Brewer
Solicitors
1 Bridge Street
York
YO1 1DD

For the Respondents	MR R HOWE
(of Counsel)
Ms A Boddy
County Secretary's Dept
North Yorkshire 
County Council
County Hall
Northallerton
North Yorkshire
DL7 8AD

	MR JUSTICE MAURICE KAY:   Mr West was a part-time Youth Worker at the Hambleton Youth Centre in Selby, working 7½ hours a week, from December 1978 until either December 1989 or January 1990; that is what the Industrial Tribunal said.

	He was a part-time worker and, following the end of his employment, made no immediate application to the Industrial Tribunal.  He came to do so in May 1994.  No doubt this was after some publicity surrounding the equal treatment directive and the decision of the House of Lords in R v Secretary of State for Employment ex-parte EOC & Another [1994] IRLR 176.  He claimed to have been unfairly dismissed.  

	The immediate response of his employers was that he was a part-time worker and did not qualify and, also, that his application was out of time in any event.  That was what was stated in their Notice of Appearance dated 17 June 1994.  However, by a letter dated 12 October 1994 the employers sought to amend that pleading and they were granted leave so to do.  The effect of the amendment was to assert that Mr West had not been dismissed at all and to assert a version of events in the following terms:

		"Mr West approached his line Manager, Mrs Lett, in November 1988 to inform her that he would be leaving for Australia for a year (1989) with his wife who was going on a teaching exchange. 

		Mr West asked if he would be given his job back when he returned.  Mrs Lett agreed that she would do this on condition that a suitable replacement could be found for the duration.

		In June 1989 the replacement left and Ms C Love was appointed to the post.

		Mrs Lett approached Mr West on his return and informed him that it was not possible to give him his old job back, but did start to explore the possibility of alternative employment for him within the service.

		If it is held that a dismissal did take place, it is the respondent's case that the dismissal was fair. ...." 

	It is apparent from that amendment that when the case came before the Industrial Tribunal on 2 November 1994, the issue of whether or not Mr West was out of time was not on the agenda.  What clearly was on the agenda was the question whether he had been dismissed at all, and that is the issue upon which the Tribunal received evidence.  

	Somewhat unusually, the Chairman and the two Members of the Industrial Tribunal reacted to that evidence in three different ways.  In the decision at paragraph 6 it is stated as follows:

		"6.  The evidence has obviously been difficult as these matters took place so long ago and they turn, principally, upon a conversation that took place in October 1988 between Mr West and Mrs Fran Lett, the youth officer in Selby at that time, Mr West's line manager.  It is clear that there was a discussion about Mr West going with his wife to Australia and what was to happen in the interim.  It is clear that there was a discussion to the effect that Mr Lett would be happy to have Mr West in post on his return. ...."

	Those are findings of fact about which the Industrial Tribunal was unanimous.  They then divided as follows:

		(a)  One member is of the opinion that what happened was that Mr West was told that his post would be kept open and that suitable arrangements were made to fill it on a temporary basis and that the indication that no P45 was issued, supports the view that Mr West's post was kept open, that he was regarded still as an employee of the County Council, kept on the books and that at a later stage, just before his return, his post was filled so that when he did return he was told at that stage that there was no job for him and was at that stage effectively dismissed.

		(b)  The other member takes the view that there was no formal arrangement of any sort in that discussion in October; that what was understood was that Mr West was a good worker who would be welcomed back in post, that he was going to Australia for a year and that arrangements would be made for his post to be filled by a temporary assistant so that it would be possible for him to be re-employed [our emphasis] on his return but that as things turned out, Mr England who was the temporary replacement, was not able to be kept in that job for a year and that the person who replaced him was, in fact, then preferred against Mr West and made permanent so that on Mr West's return there was no post to which he could return.  During that intervening period, the member takes the view that the applicant was not an employee of the County Council.

		(c)  This leaves the Chairman, as it were, with the casting decision.  It is the Chairman's view that the burden of proof in proving that he was dismissed by the County Council is upon Mr West and that he has not discharged that burden of proof.  The evidence in this case is very anecdotal.  It turns almost exclusively upon a conversation in October 1988 between the applicant and Mrs Lett.  The tribunal has heard their accounts of that conversation and the evidence that has been heard, the chairman says, has been insufficient to discharge the burden of proof upon the applicant." 

	It is apparent from those findings, that the majority of the Industrial Tribunal, decided that Mr West's application must fail and it was dismissed.  Thereafter, the local Citizens Advice Bureau, which had been representing Mr West, approached the Tribunal for a review of the decision.  The reason for that was that the applicant, Mr West, wished to produce in evidence, P60 forms for the years 1989 and 1990 which, it was suggested, would indicate that the Respondents continued to regard him as an employee during the period of his absence in Australia.

	The Chairman of the Tribunal considered that application for a review and refused it on the grounds that it had no reasonable prospect of success.  Mr West now appeals to this Tribunal and Mr Morton, who appears on his behalf, has made a number of submissions.  His first submission was that the Chairman of the Industrial Tribunal was wrong, in law, in holding that the burden of proof of dismissal was on an Applicant.  It is abundantly clear that that submission was doomed to fail.  It is very well established in the authorities that proof of dismissal is a matter for the Applicant and he must prove it upon a balance of probabilities - see Hawker Siddley Power Engineering v Rump  [1979] IRLR 425 and Morris v London Iron and Steel Co  [1987] ICR 855.  It is well known that the whole Industrial Tribunal procedure is modelled on the basis of the employee having to prove that he was dismissed, unless of course, that is conceded by his employer.  For good reason Mr Morton soon abandoned this submission.

	It was further submitted, on behalf of the Appellant, that the very form of the Industrial Tribunal's decision rendered it unsatisfactory and criticism was made as to the form of finding expressed by the Chairman, in particular.  The Appellant clearly has an unease that the three members of the Respondent responded differently to the evidence that was before it.  However, it is clear to us they each responded to it in a responsible and tenable manner.  One member found in the Appellant's favour; another found against him and the Chairman was unable to decide between the two principal witnesses and therefore concluded that the burden of proof had not been discharged.  

	There has been some criticism here (and in the skeleton argument submitted by Mr Morton) of the form of the Chairman's approach.  However, Mr Howe on behalf of the Respondents, has referred us to the decision of the Court of Appeal in Morris v London Iron and Steel Co  - see above, and it is our unanimous view that the approach of the Chairman is entirely consistent with the approach formulated by Lord Justice May in that case.  |n the end, the majority of the Industrial Tribunal came to the conclusion that the Applicant had not established dismissal.  No serious attempt has been made to show that the majority or either of them was perverse in that finding and any such attempt would have been bound to fail.

	It seems to us quite clear that the majority decision, although reached by different routes, was a perfectly proper one, on the evidence heard in the Tribunal.  

	The final submission made on behalf of the Appellant was that the Chairman erred in refusing a review in relation to the P60 forms.  We have considered those forms.  The one dealing with the year to April 1989 shows the Appellant having received £1,928.81 by way of remuneration from this employment.  The corresponding document for the year ending April 1990 shows a figure of £61.06.  Mr Morton submits that this is evidence which might have led the Tribunal to conclude that, in the year ended April 1990, he was or remained in the employment of the Respondents.  We do not think that this can be correct.  It is common ground that the Appellant did no work for the Respondents in that particular period of time.  If he was paid £61.06 there is no evidence as to what that related to and it may well be, and seems to us quite likely to be the case, that it was simply an element of back pay relating to a subsequent award.  Either way, it does not seem to us to take the matter any further.  If, as seems likely, it was back-pay or something of that kind, then the Respondents would be bound to issue the P60 in any event, whether the employee was still technically employed by them or not.

	In all the circumstances, we are unanimously of the view that the Tribunal would not have received further assistance had they received those P60s in evidence and we think the Tribunal Chairman was entirely justified in coming to the conclusion that he did when he refused a review.

	It follows from what we have said, that the Appellant's appeal on these matters must fail and his appeal is dismissed.

	We should add that, in the documents before us, the Respondent sought to raise by cross-appeal, the question of the time limit, and Mr Howe in his careful skeleton argument, has set out several pages of legal argument, accompanied by authorities, as to why the statutory time limits apply in this case and why, therefore, he says, the application was out of time.  We have declined to hear argument on that subject, mainly because of our conclusions on the primary question of whether or not there was a dismissal.