Appeal No.	 EAT/672/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 October 2000

Before
THE HONOURABLE MR JUSTICE CHARLES
MS B SWITZER
MR T C THOMAS CBE

MR A M CHAFFER	APPELLANT

SOUTHERN BIRMINGHAM COMMUNITY 
HEALTH NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR P DOUGHTY
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

	MR JUSTICE CHARLES:	

1	This appeal comes before us by way of preliminary hearing.  Our task is therefore to see whether it raises any arguable point of law.  The parties are a Mr Chaffer, who was the Applicant below and the Appellant before us and Southern Birmingham Community Health NHS Trust.

2	The appeal is against a decision of an Employment Tribunal sitting at Birmingham on 14 March 2000.  The decision was that the Tribunal had no jurisdiction to entertain the Applicant’s complaint of unfair dismissal.  The Extended Reasons for that decision were sent to the parties on 18 April, as appears therefrom both parties were represented before the Employment Tribunal.  

3	The issue before the Employment Tribunal appears from paragraph 4 of the Extended Reasons which was in the following terms:

“The issue in this case was whether or not, having regard to the fact that the applicant had signed an agreement which purported to waive his rights to make a claim for unfair dismissal in accordance with Sections 197 (1) and 203 (2) (d) of the Employment Rights Act 1996 (“the Act”), the tribunal had jurisdiction to entertain the applicant’s complaint of unfair dismissal.”

4	Today we have had the benefit of a Skeleton Argument prepared, we were told by the Solicitor who represented Mr Chaffer at the Tribunal hearing and he has today been represented by Counsel pursuant to the ELAAS Scheme.  Paragraph 18 of the Skeleton Argument identifies the nub of the point on this appeal and that paragraph is in the following terms:

“18  In the circumstances, it is submitted that since the applicant was not offered an extension of his original fixed term contract before it expired on 28 September 1998, the ‘extension’ was not an extension or renewal of his existing contract, in fact a new fixed term contract.  It is submitted that in order for the original contract to be extended, it has to have been in existence.  A purported ‘extension’ to a contract which has already terminated is, in reality, re-engagement on a new contract and the Tribunal erred in holding that the second contract was an extension to the original contract.”
There is more to the argument but that, I think, identifies its kernel.  

5	An additional point is raised in paragraph 20 of the Skeleton Argument and it attacks what is identified as the approach taken by the Employment Tribunal namely one based on reasonableness.  The nub of that argument is that if, contrary to the arguments of the Appellant, that is the correct approach to take, that approach was itself taken incorrectly because the Employment Tribunal did not admit evidence on that issue.

6	We will give leave to add that ground in effectively those terms to the Notice of Appeal; that amendment is to be made within 21 days.  We will give leave to the Respondents to apply to vary or discharge that leave, either at the full hearing or if they think appropriate by them making an application earlier.  We would not encourage them to make an earlier application.

7	Another issue that has been raised and discussed today is whether or not it would be appropriate for this Tribunal to deal with the issue of continuity, should the Appellant succeed on his appeal.

8	In our judgment the correct course as to that is for the parties to discuss whether either or both of them think that it would be appropriate for that issue to be dealt with at the same time as the appeal.  If they both consider it appropriate, then they can raise the matter before this Tribunal on the full appeal and it would be a matter for this Tribunal as to whether or not they think it appropriate to deal with it at that stage.

9	If the parties do not agree as to the appropriate course, this Tribunal should be notified if either of them seek to raise, as a preliminary issue before the Tribunal hearing the appeal the question whether or not continuity should also be dealt with on the appeal and this Tribunal can, as a preliminary point at that hearing, decide whether or not it will deal with the point.

10	It is always difficult to categorise.  We think that the correct category of this case is B plus or B/A.  The reason we say that is that the operation of sections excluding the protection given under the Act are quite important.  We give a time estimate of a day.