Appeal No.	 EAT/837/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 October 1997

Before
HIS HONOUR JUDGE H J BYRT QC
MRS T A MARSLAND
MISS D WHITTINGHAM

MALLENASH LTD	APPELLANTS

MRS M HUSSEIN	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR M TRIGG
(Solicitor)
Gill Turner & Tucker
Solicitors
Colman House
King Street
Maidstone
Kent ME14 1JE	

	JUDGE JOHN BYRT QC:     This is a preliminary issue in an appeal from a decision of the Industrial Tribunal sitting at London (South).  The decision was promulgated on 24 March 1997 and by that decision it held that the employers were obliged to pay compensation to Mrs Hussein, the employee, in the amount of £2,200 as damages for breach of contract.  The employers appeal.

	Quite shortly the facts are that Mrs Hussein was employed by the Appellants as a Manager of a Residential Home between the dates of 13 April 1993 and 30 March 1995, the date when her employment terminated.  The matter has already been before an Industrial Tribunal whose decision on the substantive issue in the case was reversed by the Employment Appeal Tribunal.  It was sent back to a second Industrial Tribunal for the purposes of assessing damages.  Mr Trigg, who has appeared on behalf of the employers, has raised three points on the hearing before the second Tribunal.  Two of them can be put very shortly.

	The Industrial Tribunal decided that, in computing the compensation to which Mrs Hussein was entitled, she should be recompensed at the rate of £275 per week for an eight week period.  He tells us that the £275 per week was a gross figure and the Tribunal should have taken into account the net figure, that is less tax and National Insurance contributions.  We do not think there is any dispute that the Industrial Tribunal should have allowed compensation only on the basis of the net figure.  The point is whether the £275 was a net or a gross figure.  Mr Trigg has put information before us in the form of payslips and so on, which shows it is arguable that £275 was a gross figure.  The employee in her IT1 indicated a much lesser figure as being her net take home pay; so it looks as if Mr Trigg may have a sound point there.

	The second point Mr Trigg makes is that on dismissing Mrs Hussein, the employers made an ex gratia payment of some substantial sum when they sent her their letter of dismissal dated 24 March 1995.  The second Industrial Tribunal, which was empowered to assess compensation, made a finding that that was not an ex gratia payment in its literal sense but was compensation for overtime Mrs Hussein had put in before she was dismissed.  They came to that decision primarily, if not solely, because that was the finding of the Industrial Tribunal who heard this case in the first place.  In fact the case was remitted to the second Industrial Tribunal to determine all matters relating to compensation, and one has to wonder why that second Tribunal did not come to an independent decision about this matter for themselves.  Having looked at the correspondence and the documentation Mr Trigg has referred to, it would seem that it is strongly arguable that this was an ex gratia payment.  Once more this is a matter, Mr Trigg says, which should go forward for consideration at a full hearing of the Employment Appeal Tribunal.  

	Mr Trigg then refers to one last matter, his third ground of appeal.  He says that at the date when Mrs Hussein was given a final written warning, she wrote a letter to the Inspection Unit of the local authority condemning her employer, Mrs Tanner saying that, as a result of this lady’s eccentric and impossible behaviour, the successful operation of the Residential Home was jeopardised.  This letter was advanced before the Industrial Tribunal by the employers as a justification for dismissing this lady summarily.  It is said that writing the letter amounted to gross misconduct, an act of vengeance against Mrs Tanner.

	The Industrial Tribunal who determined the question of compensation, took a different view.  They held that Mrs Hussein was in effect entitled to write that letter in pursuance of a public duty she owed the residents of this Home, that she was drawing the attention of the Inspection Unit to certain matters she felt were important.  Whether she was so entitled is a question of fact.  Mindful how difficult it is to disturb a finding of fact by an Industrial Tribunal, it is nonetheless our view that this matter should go forward to a full hearing together with the two earlier points.  Accordingly, we give the employers leave to argue all three grounds fully before a further hearing of this Tribunal.

	There is only one other point that concerns us, namely whether this Tribunal has jurisdiction to make any determination on an appeal relating to contracts of employment.  It would seem that, by reason of the provisions of Section 21 of the Industrial Tribunals Act 1996, that we may not have such jurisdiction.  Accordingly, the appropriate order we should make is that we adjourn this appeal until such time as this jurisdiction point is resolved.  In the event of it being determined that this Tribunal does have jurisdiction, we direct that this case go forward for a full hearing without there being any need for a further preliminary hearing before this Tribunal.