Appeal No.	EAT/1023/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 November 1998

Before
THE HONOURABLE MR JUSTICE MORISON (P)
LORD  DAVIES OF COITY  CBE
DR D GRIEVES CBE

CERBERUS SOFTWARE LTD	APPELLANTS

MR J A ROWLEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR M L DINEEN
(of Counsel)
Messrs Blatch & Co
Solicitors
7 Salisbury Road
Totton
Hampshire SO40 3HW	

	MR JUSTICE MORISON (PRESIDENT):     The purpose of this hearing is to determine whether there is an arguable point of law raised in the Notice of Appeal in this case, which has been filed on behalf of the employers, Cerberus Software Ltd, against part of a decision of an Industrial Tribunal which concluded that the employers were in breach of contract and had also unfairly dismissed the Applicant, Mr Rowley.

	Because it has become apparent that the appeal is a partial appeal only against the decision of the Tribunal, Mr Dineen of Counsel, on behalf of the employers, has helpfully indicated to us the part, which has not been appealed, that has already been paid to the Applicant.  He points out that his appeal relates not to the whole, but only to part of the amount of £21,348.21 which is in issue and has indicated that, at best, if his appeal were to succeed the employers would accept that they were under a liability to pay £1,880.00 to the Applicant.  

	It follows, therefore, that it would be appropriate that, taking their case at its best, that sum should be paid and Counsel has very helpfully indicated that he has taken instructions and is in a position to give an undertaking that the Appellants will pay that sum within 14 days of today.  Therefore, I shall indicate that in making this order it will be on the basis that upon the Counsel undertaking on behalf of the Appellants, that that sum will be paid within 14 days to the Respondent to the appeal, Mr Rowley.  

	The appeal should proceed to a full hearing on the issue raised in the Notice of Appeal.  It is a point of some interest.  It relates to a clause in a contract which entitles an employer to terminate a contract without requiring the employee to serve out the period of notice and to pay compensation.

	The employers in this case summarily dismissed the employee alleging that they had good grounds for doing so.  The Tribunal concluded that they did not have good grounds for doing so.  The question then arises as to the entitlement of the employee, having obtained good alternative employment within a relatively short period of time after the dismissal, and before the expiry of the notice period to which he was entitled.

	The Notice of Appeal is in clear form and sets out succinctly what the issue is.  We think it would be appropriate that it should be heard by a full panel and upon that undertaking being given, we are happy to say that it should proceed to a full hearing. 

	This is a case where I think it should be marked Category ‘A’ because I think it is a point of some difficulty.  It is likely to take, I think, no more than half a day to determine.  Notes of Evidence are not required.  The Respondent is not seeking notes.  Because of the amount at stake I think this is a case which should come on as early as we can manage it, and I would therefore direct that our Listing Office should list it for hearing as soon as a slot becomes available.  Otherwise, no other directions are required.