Appeal No.	 EAT/761/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 October 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MR A D TUFFIN CBE
MR B M WARMAN

MR J DHESI	APPELLANT

BUNCHER & HASELER LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR T ROCHFORD
(of Counsel)
Messrs Bassi
220 Soho Road
Handsworth
Birmingham
B21 9LR	

	MR JUSTICE HOLLAND:	We have before us an appeal from a decision of an Employment Tribunal held at Birmingham on 11 March 1999.

1	The decision was in these terms:

“The unanimous decision of the tribunal is that the applicant was unfairly dismissed but a contribution of 100% applies.  The tribunal makes no award.”

2	That decision reflected the contents of paragraph 18 of the Extended Reasons in these terms:

“18.  We have considered the question of compensation as an alternative.  However, having regard to the Tribunal’s assessment of the level of the applicant’s contributory conduct, we find that it is just and equitable that any basic award of compensation be reduced to nil.  In the context of the compensatory award, the Tribunal come to the same conclusion.  It is just and equitable that the applicant’s contributory fault of itself reduce any compensatory award to nil.  We find that this is a case of procedural unfairness alone.  Had the respondent followed a fair investigative and disciplinary procedure, the applicant would inevitably have been dismissed.”

3	From that decision an appeal is mounted by the Applicant, the essential contention being this, that in that latter paragraph the Employment Tribunal was in error as a matter of law.  The case is set down before us today by way of preliminary hearing, it being our task to decide whether a point of law is raised sufficient to justify an inter partes hearing.  In our judgment there is a point of law of that calibre.

4	The point that this Tribunal merits careful consideration is the reduction of the basic award to nil.  This step necessarily involves consideration of the powers of the Tribunal as provided by section 122(2) of the Employment Rights Act 1996 and, in our judgment it is arguable that the Employment Tribunal failed to heed the terms of that subsection and equated it with section 123(6), that is the subsection dealing with reduction of a compensatory award.  Thus, on that basis, we adjourn the matter so it may go forward for an inter partes hearing.  

5	We further considered the point raised this morning by Mr Rochford about the application of section 123(6), so as to reduce the compensatory award to nil.  He makes a submission that that process must be flawed in law, having regard to the findings of the Tribunal.  For our part, we find his arguments of less weight, but nonetheless of sufficient weight to justify further development at the inter partes hearing.  Thus, on both the essential points taken by Mr Rochford this matter will go forward.

6	So far as its listing is concerned, we rate it as Category C.  We suggest a time estimate of half a day, but unless Mr Rochford argues the contrary we see no advantage in having a copy of the Chairman’s Notes.