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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Gaught v. Fraser [2002] UKEAT 0674_01_0807 (8 July 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/0674_01_0807.html Cite as: [2002] UKEAT 674_1_807, [2002] UKEAT 0674_01_0807

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APPEARANCES

 

For the Appellant	MR DECLAN O'DEMPSEY (Of Counsel) Under The Employment Law Appeal Advice Scheme


 


MR RECORDER LANGSTAFF QC

1. In this Preliminary Hearing in an appeal against the decision by an Employment Tribunal sitting at Bristol with Extended Reasons dated 18 April 2001 we have given leave for 3 grounds of appeal to be argued. They are re amended grounds which we think encapsulate the points that an inter partes hearing will wish to consider. We should say just a few words about why we think this case is appropriate for consideration before a full Tribunal.
2. The claim was essentially in respect of unfair dismissal. The Tribunal rejected the complaint of unfair dismissal because arguably, and we stress that word, the Tribunal concluded that there had been misconduct by the Appellant in failing to return to work as ordered by his employers. In considering whether or not a dismissal for that reason was constructively unfair as the Appellant had argued the Tribunal at paragraph 30 arguably appear to focus upon events in January or February 2000 when there had been a variation of the Appellant's contract.
3. What they did not consider was whether or not the conduct of the employer in the months from September 2000 until the date of dismissal in November 2000 was such as to justify the Appellant in refusing to work further. In short Mr O'Dempsey who appears under the ELAAS Scheme and for whose submissions we are very grateful would wish to say that the Tribunal did not sufficiently analyse whether there was anything in the behaviour of the employer prior to the Appellant refusing to turn up for work that justified that refusal.
4. This might have been for instance treating him in such a way that the trust and confidence which the employer and employee ought mutually to enjoy had been forfeited without good reason. He would strengthen that argument by noting that evidence which Mr Gaught put before the Tribunal from a Mr Gay was uncontradicted. It was to the effect that the climate at the workplace was so unfriendly as to amount arguably to a breach of contract on the employer's part. Yet the Tribunal did not subject that evidence to any express analysis. We should add that at this stage we are in no position to judge whether or not this appeal will ultimately succeed merely to observe that on the grounds now put before us upon which we give leave and to which we have referred in this short judgment we think there is an arguable case that they might. We consider that the appeal hearing will take no more than half a day, perhaps 2 hours will be better. It is Category C. Skeleton arguments should be supplied no less than 7 days in advance of the hearing together with photocopies of any cases to be relied upon.