Appeal No.	 EAT/715/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 October 1997

Before
HIS HONOUR JUDGE H J BYRT QC
MR E HAMMOND OBE
MR P A L PARKER CBE

MR E PERRY	APPELLANT

WHICHFORD INTERNATIONAL LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR S NEAMAN
(of Counsel)
Messrs Copley Clark & Bennett
Solicitors
36 Grove Road
Sutton
Surrey SM1 1BS	

	JUDGE JOHN BYRT QC:     This is a preliminary hearing in respect of an appeal from a decision of an Industrial Tribunal Chairman sitting alone at Reading.  His decision was promulgated on 21 March 1997.  He held that the Respondents were in breach of contract relating to the manner in which they dismissed the Applicant, Mr Perry, and awarded him the sum of £7,849.00.

	Prior to giving our views about this matter, it is right that I should say it is the view of this Tribunal that it does not have jurisdiction to determine appeals from an Industrial Tribunal in relation to alleged breaches of contract.  However, we have thought, for the purposes of saving judicial and administrative time, that we should have a look at the nature of the Appellant’s appeal to consider whether there is any merit in it.

	Mr Perry was one of three Franchise Directors employed by the Respondents.  His employment began on 21 October 1995 and ended when his Notice of Dismissal expired on 6 October 1996.  The circumstances leading to his dismissal are that, at some stage in August, he was given a warning by the Managing Director of the Respondent company that, unless he achieved certain results by the end of the month, his services would no longer be wanted.

	On 2 September there was a further meeting between Mr Perry and the Managing Director at the end of which the Managing Director indicated that his management performance was unsatisfactory.  He then suggested the matter be dealt with amicably by Mr Perry resigning.  Mr Perry declined and, in due course, a notice terminating his employment was served upon him on 6 September expiring 6 October.

	This matter came on before the Industrial Tribunal.  They found that the Respondents had acted in breach on Mr Perry’s contract in that they had dismissed him for poor performance, and yet not complied with the contractual terms which required various oral and written warnings to be given in advance.  They then set about determining the amount of compensation Mr Perry should be paid.  

	The argument advanced on behalf of Mr Perry was that they had approached the question of compensation on the basis of the length of time it would have taken for the contractual provisions relating to warnings to be completed.  He advanced the case that that would have taken 12 months to fulfil.

	The Tribunal however took a different view.  They considered that Mr Perry would or should have protested to the Board of Directors and, had he done so, they thought it would have become apparent at that stage that he was not being dismissed for under performance but for economic reasons, namely that the Company could not withstand the salaries of three, as opposed to two Franchise Directors.  The Industrial Tribunal came to the conclusion that thereafter it would have taken only two months for the matter to be sorted out and Mr Perry, in due course, would have been dismissed with a month’s notice. 

	Mr Neaman, for the Appellant, raises two points.  First, he says, that in computing the length of time it was to have taken for the contractual provisions to be worked through, his client’s evidence stood alone, namely it would have taken 12 months.  There was no evidence advanced by the Respondents that it would be any less.  There was no cross-examination to that effect and there was no submission made at the end of the case by the Respondents that some lesser time than 12 months should be taken into account.  In those circumstances, he says, the Tribunal fell into error in that it chose an alternative period of time contrary to the evidence.  In the second part of his argument, Mr Neaman says there was no evidence to support the course the Tribunal suggested Mr Perry should have taken, namely a protest to the Board of Directors.  So on both accounts, he says there is at least an arguable case to go forward to a full hearing.  We take the view that had we jurisdiction we would have let this matter through to a full hearing.

	In the circumstances however, we think that the best and fairest order to make, with a view to saving both judicial time and administrative costs, would be to adjourn this case for a definitive decision upon the jurisdiction point.  And we so order.

	We also give a direction that if subsequently it be held that this court has jurisdiction to deal with a breach of contract case, then this matter should go forward to a Tribunal hearing for full argument, without it being re-listed as an adjourned preliminary hearing.