Appeal No. EAT/647/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 1st November 1995

	Before

	HIS HONOUR JUDGE P CLARK

	MISS A MACKIE OBE

	MS D WARWICK

MR R PURCHASE	APPELLANT

ELLIS & BUCKLE	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R PURCHASE
(Appellant in person)

For the Respondents	MR T KEMPSTER
(of Counsel)
Messrs Bevan Ashford
35 Colston Avenue
Bristol
BS1 4TT

	JUDGE CLARK:   This is an appeal by the employee, Mr Purchase, against a unanimous decision of Southampton Industrial Tribunal entered on the Register on 25th April 1994 rejecting his application for compensation for unfair dismissal.

	By his originating application the appellant complained that he had been dismissed following complaints about his performance as an insurance loss adjuster by his employer, and that such dismissal was unfair.

	In answer the respondent admitted dismissal in its Notice of Appearance and claimed that the reason for dismissal was "redundancy as agreed". In its grounds for resistance, the respondent referred to an agreed redundancy package and also set out shortcomings in his performance prior to his leaving the employment on 4th June 1993.

	On this basis, the case came before the Industrial Tribunal for a full hearing on 30th March 1994. The appellant appeared in person, the respondent was represented by a solicitor Ms Sapeta. We are told by Mr Kempster who appears for the respondent before us on instructions from Ms Sapeta, that the Tribunal Chairman indicated at the outset that he was concerned as to whether or not there had been a dismissal of the appellant. Mr Purchase who represents himself again today, does not recollect that being said, and no note to that effect appears in the Chairman's Notes of Evidence which we have seen.

	It is common ground that the issue of whether or not there was a dismissal was not raised again during the hearing, either at the oral evidence stage or more particularly, in closing addresses.

	I turn now to the Industrial Tribunal's summary reasons for their decision, and would add, that despite the appellant's written request for extended reasons, no such extended reasons were ever provided by the Chairman.

	In paragraph 7 of the summary reasons it is said:

		"7.	In spite of the initial concession by the respondents that the applicant had been dismissed, during the course of the hearing, we were able to identify a preliminary point as to whether or not there had been a dismissal or not since it appeared to us that the evidence pointed to a consensual termination."

	The Tribunal then go on to consider the evidence and at paragraph 11 conclude:

		"11.	On those facts it is our view that the applicant has failed to prove that he was dismissed, and all the evidence suggests that there was a consensual parting. In this event, the applicant would be unable to prove that he had been unfairly dismissed."

	Having found that there was no dismissal and thus that the Industrial Tribunal had no jurisdiction to entertain the complaint, the Tribunal nevertheless went on to assume that there was a dismissal, and find that the reason for such a hypothetical dismissal was redundancy and that the dismissal was fair.

	In this appeal the appellant raises four grounds of appeal, the first of which concerns the fairness of the Industrial Tribunal hearing. He has referred us to the Employment Appeal Tribunal decision in Laurie v Holloway [1994] ICR 32, and I take the facts from the headnote:

		"	At the hearing before an industrial tribunal of an unfair dismissal complaint the issue of whether there was arrangement between the employee and the employer intended to defraud the Inland Revenue was raised by questions put by the chairman to the employee, concerning the amount of his take home and gross pay, whether he had received wage slips and his knowledge of any deductions made by the employer for income tax. Counsel for the employee stated that he believed that wage slips were available and could be produced by the employer, to which the Chairman replied that was a matter for the employee. When the employer gave evidence he was not asked any questions about the matter. The tribunal held that there was an arrangement between the employer and employee to defraud the Inland Revenue, and they refused to adjudicate on the complaint on the ground of the illegality of the contract of employment. 

		On the employee's appeal:-

			Held, allowing the appeal that, where a tribunal was minded to take a point which had not been taken by the parties, natural justice required that it should alert the parties to that possibility; that the parties had not been sufficiently alerted to the prospect of the industrial tribunal considering a point, not raised by the parties, which was likely to dispositive the case, and ought to of been warned before closing speeches were concluded that the Tribunal was troubled by the question of illegality; and that accordingly, the case would be remitted to be heard by a differently constituted tribunal."

	We see from page 35 B of the report that the Employment Appeal Tribunal noted:

		"... while closing speeches were being made the issue [that is of illegality] was not raised by the tribunal."

	Knox J giving the judgment of this Tribunal concluded in these terms at page 38 F:

		"	The conclusion is therefore that we think it would be unsafe for this decision to stand and that there was an error of law in failing to give adequate notice of the illegality point and, accordingly, we allow this appeal, remit this case to heard, and we think on the balance it would be better if it was heard by a different tribunal. ..."

	We think that there are close similarities between the facts of that case and this case, and we agree with the conclusion expressed in Laurie and we apply it similarly to this case. It follows that the case must be remitted to a fresh Industrial Tribunal to consider the issue of whether or not the appellant was dismissed.

	However, Mr Kempster urges us to adopt the same approach as the Industrial Tribunal, that is to assume a dismissal and go on to consider the appellant's appeal against the Industrial Tribunal's finding of a fair redundancy dismissal. We decline his invitation.

	It seems to us that once an Industrial Tribunal had decided, as did this one, that it has no jurisdiction to entertain a complaint of unfair dismissal, it should not embark on a hypothetical exercise on the assumption that there was a dismissal. We think that the proper course here is to remit the whole case to a fresh Industrial Tribunal. It will be for that Tribunal to decide once the pleadings are put in order and the point is taken in the form IT3, whether there should be a preliminary hearing as to the issue of dismissal. Only if there is found to be a dismissal will it then be necessary for the Industrial Tribunal to go on to consider questions arising under Section 57 of the Act.

	It follows that this appeal will be allowed and the case will be remitted to a fresh Industrial Tribunal.