Appeal No. UKEAT/0179/07/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 November 2007

Before
HIS HONOUR JUDGE BIRTLES
MRS J M MATTHIAS
MR D WELCH

DR C S DANIELS	APPELLANT

E IVOR HUGHES EDUCATIONAL FOUNDATION	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	DR D S DANIELS
(The Appellant in Person)	
For the Respondent	MR J PALMER
(of Counsel)
Instructed by:
Messrs IBB Solicitors 
Capital Court
30 Windsor Street
Uxbridge
Middlesex 
UB8 1AB	

SUMMARY
Unfair dismissal – Reason for dismissal including substantial other reason
Employment Tribunal failed to find (a) the principal reason for the dismissal and (b) whether it was fair.  Appeal allowed by consent and remitted for a rehearing before a fresh Employment Tribunal.  Note this was a case where an earlier Barke remission only highlighted the failure of the Employment Tribunal to address the correct questions.

HIS HONOUR JUDGE BIRTLES 

Introduction
1.	This is an appeal from the decision of an Employment Tribunal sitting at Watford on 23 and 24 November 2006.  The decision was sent to the parties and entered in the register on 8 January 2007.  

History
2.	There is an amended Notice of Appeal approved by this Tribunal on 27 June 2007.  It makes out two grounds of appeal.  The first is a failure to provide sufficient reasons and the second is a failure to consider paragraph 1.22 of the written decision.  I think it is fair to say as Mr Palmer points out that really 1 follows 2.  There was a response by the Respondent and following that response HHJ Pugsley ordered a Barke remission; see Barke v Seetec Business Technology Centre Ltd [2005] IRLR 633.  There is a response by the Employment Tribunal to the Barke request dated 13 September 2007.  

The hearing today
3.	Having considered the response by the Chairman dated 13 September 2007 the Respondent concede that the Employment Tribunal erred in law in its failure to give adequate reasons.  We entirely agree with that concession.  It is quite clear having looked at the original Employment Tribunal decision and the answer to the Barke request dated 13 September 2007 that the Employment Tribunal have failed to find (a) what was the principal reason for the dismissal and (b) whether it was a fair dismissal within the meaning of section 98(4) of the 1996 Act.  

4.	It follows that this appeal must therefore be allowed and the parties are agreed and we agree that this case must be remitted for a complete re-hearing to a freshly constituted Employment Tribunal.

5.	On the conclusion of my judgment on the merits Mr Palmer, on behalf of the Respondent, made an application for the Appellant to pay the Respondent’s costs of appearing today.  The position is that for some time Dr Daniels has been represented by Russell Jones and Walker.  He has been good enough to tell us that that was on the basis of a Legal Services Commission funding certificate.  We know that there is a continuing duty on solicitors in receipt of legal services funding to keep the Legal Services Commission informed of negotiations and it would appear that at some stage at the end of last week Dr Daniels was told by Russell Jones and Walker that they were asking the Legal Services Commission to freeze his legal aid certificate which would mean that he would not be able to be represented by them or by counsel instructed by them today.  

6.	The Respondent’s solicitors are IBB Solicitors who wrote to the Registrar on 16 November 2007 indicating that they were conceding the appeal and agreeing that the matter should be remitted to a fresh Employment Tribunal.  They made that proposal to Russell Jones and Walker who told them that they had come off the record.  Dr Daniels has told us this morning that he had received a copy of the letter yesterday from Russell Jones and Walker to the EAT taking themselves off the record.  I made an enquiry about this earlier this morning before coming into Court.  It does not appear as at the moment that that letter has been received although it may well be in the mail system as mail which has come into the building this morning and not been processed.

7.	Separately IBB wrote to Dr Daniels making the same proposal. We have listened carefully to what both Dr Daniels and Mr Palmer have said in the peculiar circumstances of this case. We are not able to question Dr Daniels about the precise discussions which had taken place between himself and Russell Jones and Walker or indeed, unless he were to waive his privilege, to see any correspondence between him and them.  We have taken the view that it will not be appropriate in this case to make an order for costs on the grounds that Dr Daniels required the Respondent to attend this morning and we therefore refuse the application for the Respondents costs of today.