Appeal No. EAT/1262/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 December 1997

Before
HIS HONOUR JUDGE B HARGROVE QC
MR J D DALY
MR P A L PARKER CBE

MS S GLENNIE	APPELLANT

INDEPENDENT MAGAZINES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR O QASSIM
(Representative)
Messrs Keene Marsland
Solicitors
Dragoon House
37 Artillery Lane
Bishopsgate E1 7LT	

	JUDGE B HARGROVE QC:  The Industrial Tribunal held that it had no jurisdiction because the originating application was not delivered within three months of the effective date of termination.  Both parties worked at the Tribunal on the basis that the effective date of termination was 27 February and, indeed, that was the date which appeared on the IT1 of the Appellant.

	The Tribunal found that the application was not within time because Mr Qassim failed to operate the Fax machine properly.  

	The Appellant now raises the point that the manner of dismissal was by notice given in a letter of 27 February and that gave one month’s notice.  It is argued, therefore, that under s.97(1)(a) of the Employment Rights Act, the effective date of termination is the end of the period of notice even if the employer sends the employee on gardening leave.  That point was not taken by Mr Qassim before the Industrial Tribunal.  

	He has appeared before us today.  He is unable to assist us on any cases upon this matter to guide us upon whether we ought, at this stage, to permit the raising of a new point which was not taken before the Industrial Tribunal.

	The situation is that if the Tribunal does not have a point of law raised before it then in the usual course of events such a matter cannot be raised before us at a later stage.  It prejudices the successful party below.

	However, if an Industrial Tribunal wrongly assumes jurisdiction and I emphasize “wrongly assumes” jurisdiction, then the point can be taken but here the Industrial Tribunal has, on the Appellant’s case, refused jurisdiction.  There is a conflict between the decision of Talbot J in House v Emerson Electric Industrial Controls [1980] ICR 795 where Talbot J took the view that in all cases in relation to jurisdiction the Court should permit such matters to come before it but Knox J in Russell v Elmdon Freight Terminal Ltd [1989] ICR 629 at 632 said that it is a question in each case whether the justice requires the new point to be taken and that the blanket indication set out in the House case that any point relating to jurisdiction can be raised for the first time on appeal, is too wide.  

	It therefore appears to us that there is a point of law here and with some reluctance we will let it go forward to a full hearing, each side to file and exchange skeleton arguments by 28 days before final hearing, there will be a time estimate of half a day and it will be a category C case.