Appeal No.	 EAT/985/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 November 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
LORD GLADWIN OF CLEE CBE JP
MISS C HOLROYD

MR A J CLOONEY	APPELLANT

EUROWINES (SOUTHERN) LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR T PULLEN
(of Counsel)
Hammersmith & Fulham Community Law Centre
142-144 King Street
Hammersmith
W6 0QU	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Mr Clooney wishes to make against a decision of an Industrial Tribunal held at London (North) on 24th February 1998.

	The unanimous decision of the Industrial Tribunal was that the applicant was unfairly constructively dismissed and that the applicant was entitled to £765.57 by way of compensation subject to the recoupment provisions.

	It is not entirely clear what happened on the day of the tribunal hearing. It appears that the issue as to whether there was a constructive dismissal was compromised in the sense that Counsel on behalf of the respondents, the applicant being unrepresented, conceded that there had been a constructive dismissal which simply left the question of compensation. The substantive part of the decision relates to questions of contributory fault. 

	Mr Pullen, on the appellant’s behalf, has submitted through a full Notice of Appeal, that it is not really a satisfactory decision at all, because it is not possible to understand how the tribunal linked the activities relied on for reducing compensation to the dismissal, without the tribunal setting out what the dismissal was and in what circumstances it came about.

	Rather than go through each of the items relied upon by the Industrial Tribunal, it suffices to say at this stage that we see the force of that submission, as indeed, do we see the force of the submission that is made in relation to what would have been a serious matter, namely the alleged tampering with tachograph documents.

	As at present advised, it does not appear that that was a matter which had been relied upon by the employers in their further and better particulars which they had provided of the grounds for resisting this complaint.

	All the matters raised in the Notice of Appeal merit, in our judgment, further consideration by the Employment Appeal Tribunal. 

	This is a case where we think it desirable that the applicant should swear an affidavit within 21 days of today setting out, in as much detail as he can, precisely what he believed happened at the Industrial Tribunal. That affidavit will be passed to the respondents who will be given 21 days in which to file any affidavit that they wish as to the conduct of these proceedings, and those affidavits will be provided to the Industrial Tribunal Chairman for his comments. He of course may wish to consult his lay members if he has difficulty in his recollection. When that has been done, if there is any need for further directions, then a directions hearing can be convened in the Employment Appeal Tribunal before normal court hours.

	This is a case where we believe that Notes of Evidence should be required. Therefore, I order that we have Notes of Evidence and that order will be accompanied by a letter which will indicate to the learned Chairman that we would be grateful if he were able to take the time to give us these notes, knowing how difficult providing Notes of Evidence can be.

	When it comes back I think this would be a Category B case, depending of course on what is said in the affidavits and how the matter progresses. I would have thought that the present time estimate of half a day for this appeal would be appropriate, but that can, if needs be, be adjusted upwards or downwards as the case might be.

	We are grateful to Mr Pullen for his assistance.