Appeal No.	 EAT/559/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 July 1998

Before
HIS HONOUR JUDGE PETER CLARK
MRS E HART
MR T C THOMAS CBE

MRS J DAVENPORT	APPELLANT

TAPTONHOLME FOR ELDERLY PEOPLE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR I HARRISON
(Representative)
Advice Worker
Pitsmoor CAB
30 Spital Hill
Sheffield S4 7LG	

	JUDGE PETER CLARK:     The Appellant, Mrs Davenport was employed by the Respondent at their Residential Home for the Elderly in Sheffield as a Night Care Assistant from June 1990 until her summary dismissal on 10 July 1997.

	The reason for dismissal advanced by the Respondent was that the local authority, as the Registration Authority for the home, had received a report that the Appellant and a colleague on the night shift were abusing the elderly patients in their care.  A case conference was convened on 12 May 1997, attended by the matron of the home and representatives from the police and the local authority Inspection and Registration team.  One of the recommendations following that conference was that the Appellant and her colleague be put on the “undesirables list”.  A disciplinary hearing was convened, finally on 24 June 1997, whereafter the Appellant was dismissed by letter dated 10 July.

	The Industrial Tribunal sitting at Sheffield to hear the Appellant’s complaint of unfair dismissal found that the Respondent had established a potentially fair reason for dismissal, namely some other substantial reason under section 98 (1) (b) of the Employment Rights Act 1996.

	In considering the reasonableness of the dismissal under section 98 (4) the Tribunal found that if the Respondent were to continue to employ the Appellant after she was placed on the undesirables list they risked closure of the home.  They had no option but to dismiss the Appellant.  The disciplinary procedure adopted was fair and reasonable; dismissal fell within the range of reasonable responses; however they went on to find the dismissal unfair solely on the basis that she ought to have been dismissed on contractual notice, or with pay in lieu of notice.

	The Tribunal then went on to find that it would not be just and equitable to make a basic award on the grounds of the Appellant’s conduct, and thus limited her compensation for unfair dismissal to the appropriate notice pay.

The Appeal 

	By her Notice of Appeal, settled by Mr Harrison who appears on her behalf today, the Appellant takes essentially two points.

	First, that the Industrial Tribunal could not properly find that it was just and equitable to make a nil basic award in the absence of factual findings of misconduct on the part of the Appellant.  We think that point is arguable and for that reason the matter should proceed to a full appeal hearing.

	Secondly, it is submitted that the Industrial Tribunal found that the pressure applied by the local authority on the Respondent to dismiss the Appellant, was improper pressure and that that precluded a finding that the Respondent had established a potentially fair reason for dismissal; that is some other substantial reason.  In this connection reliance is placed on the unreported Scottish EAT decision in Lavelle v Alloa Brewery Co Ltd (EAT/655/85).  Again, we think that that point ought to be argued at a full hearing.

	Thirdly, there is an application before us to adduce fresh evidence in the form of a letter from the local authority; that is Sheffield City Council, to the Appellant’s local Member of Parliament, Helen Jackson, dated 19 March 1998.

	Since this is an ex-parte preliminary hearing and the matter is to proceed to a full appeal hearing, we think the proper course is to leave over the application to adduce fresh evidence until the full appeal hearing, so that the Respondent has an opportunity to make representations on the admissibility of that evidence, applying the principles in Wileman v Minilec Engineering Ltd [1988] ICR 318.

	That deals with the matters raised by way of appeal, but we should also refer to the Respondent’s PHD form in which they indicate a wish to cross-appeal, only if the appeal is allowed to proceed to a full hearing.  In these circumstances, under the PHD procedure, the Respondent is not required to enter an answer and cross-appeal at this stage.  They have not done so.  

	We can, however, anticipate that the Respondent may wish to cross-appeal against the finding of unfair dismissal based solely on the lack of contractual notice, which arguably runs counter to the earlier EAT decisions in Treganowan v Robert Knee & Co Ltd [1975] ICR 405 and BSC Sports & Social Club v Morgan [1987] IRLR 391.

	We further note that the Originating Application claims unfair dismissal only and does not, at this stage, include a claim for breach of contract which would cover a free-standing wrongful dismissal claim for damages based on the lack of notice or pay in lieu of notice given by the Respondent.

	For all these reasons we think that the matter should proceed to a full hearing and for that purpose we shall direct that the case be listed for a half day; Category C, skeleton arguments to be exchanged between the parties, not less than 14 days before the date fixed for the full appeal hearing.

	There is no necessity for Chairman’s Notes of Evidence.  There are no further directions.