Appeal No.	EAT/1165/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 December 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR K M HACK JP
MR A D TUFFIN CBE

J P FITZPATRICK (CABLE TV) LTD	APPELLANTS

MRS R WHICKER	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MR S J BROWN
(of Counsel)
Instructed by:
Mr M Legister
(Solicitor)
J P Fitzpatrick (Cable TV) Ltd
11 Churchill Court
58 Station Road
Harrow
Middlesex
HA2 7SA	

	JUDGE PETER CLARK:     In this case the employee, Mrs Whicker, complained of unfair dismissal against her former employer, the appellant, J P Fitzpatrick (Cable TV) Ltd on the grounds that she was dismissed for an inadmissible reason, namely asserting a statutory right with the meaning of s. 104 of the Employment Rights Act 1996. At the time of dismissal she had not completed two years continuous service, although no such qualifying period applies in such a case.

	The first arguable point taken in the appeal we think, is whether the London (North) Industrial Tribunal wrongly placed the burden of proving the reason for dismissal on the employer, applying the judgment of the Court of Appeal in Smith v Hayle [1978] ICR 996 on the analogous provisions related to dismissal for trade union membership.

	Secondly, we think it arguable that the tribunal failed properly to consider the precise limits of the statutory provision, which is mis-stated in paragraph 19 of the reasons. The prohibited reason for dismissal is not the infringement of the employee’s statutory rights, but her assertion that her rights have been infringed. Although there is no doubt that Mrs Whicker complained about a failure to make an overtime payment, and that may amount an assertion of a statutory right, it is arguably unclear whether it was that complaint, or the fact that she refused to work overtime subsequently, which the tribunal found was the reason or principal reason for dismissal. If the former it comes within s. 104; if the latter, it does not.

	Finally, Mr Brown on behalf of the appellant has formally withdrawn the perversity ground of appeal advanced in the Notice of Appeal. 

	In these circumstance, this matter will proceed to a full appeal hearing on the two points which we have identified in this judgment only.

	The case should be listed for half a day. There will be no direction for Chairman’s Notes of Evidence. Skeleton arguments should be exchanged and copies lodged with the Employment Appeal Tribunal not less than 14 days before the date fixed for the hearing.