Appeal No.	EAT/1296/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 July 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR R N STRAKER
MS B SWITZER

TSB BANK PLC	APPELLANTS

MISS L HARRIS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR R LEMON
(of Counsel)
Messrs Moore & Blatch
Solicitors
11 The Avenue
Southampton
SO17 1XF	

	JUDGE PETER CLARK:     The procedural history of this matter is as follows.  On 17 August 1996 the Applicant, Miss Harris, presented an Originating Application to the Industrial Tribunal complaining of unfair dismissal, breach of contract and an unlawful deduction under the Wages Act in respect of holiday pay.  She had been employed by the Respondent Bank from 8 March 1993 until her resignation tendered on 17 July 1996.  She alleged that she resigned in circumstances amounting to constructive dismissal and that such dismissal was unfair.  Further, she contended that the Bank was in breach of contract both generally and specifically in relation to references supplied by the Bank to potential new employers, Prudential Assurance and a firm in Chester.  The claims were resisted.

	The case was heard over five days in December 1996 and April 1997 by an Industrial Tribunal sitting at Liverpool.  By a decision with extended reasons dated 16 June 1997 that Tribunal dealt only with the claim of unfair dismissal.  The Industrial Tribunal felt that the Applicant had been constructively dismissed and that the dismissal was unfair (the first decision).

	At the first hearing the Applicant’s Solicitor withdrew the Wages Act claim, but not that of breach of contract.  Following promulgation of the first decision the Applicant’s Solicitor applied for a review of that decision on the basis that the Industrial Tribunal had not adjudicated on the breach of contract claim.  That application was granted at a review hearing held on 29 September 1997 and the same Industrial Tribunal went on to find that the Bank was in breach of contract.  That decision, the review decision, was promulgated with extended reasons on 6 November 1997.

	Against the first decision the Bank appealed by a Notice of Appeal dated 23 July 1997 (EAT/1145/97) and against the review decision the Bank appealed by Notice dated 21 November 1997 (EAT/1296/97).

	Both appeals were listed before a division of the EAT presided over by Judge Hargrove QC for a preliminary hearing on 1 December 1997.  Shortly before that hearing it had been appreciated that under the 1996 consolidating legislation the EAT’s power to hear appeals in breach of contract cases, formerly to be found in section 136 of the Employment Protection (Consolidation) Act 1978, had not been preserved:  see Pendragon Plc v Jackson [1998] IRLR 17.

	On that occasion the EAT allowed the first appeal (EAT/1145/97) to proceed to a full appeal hearing.  An order for Chairman’s Notes was also made and the case was listed Category C for two days.  The second appeal, EAT/1296/97, was adjourned for want of jurisdiction.

	Jurisdiction to hear breach of contract appeals now having been restored by Parliament, this is the adjourned preliminary hearing in that second appeal.

	Having considered the background, the two decisions of the Industrial Tribunal and the submissions made by Mr Lemon on behalf of the Bank, we have concluded that the second appeal should also proceed to a full appeal hearing for the following reasons:

(1)  Insofar as the Industrial Tribunal’s finding of breach of contract at the review stage amounts to a finding of wrongful dismissal, the issues as to the finding of constructive dismissal in the first decision and the question of whether the Applicant was wrongfully dismissed are inextricably linked and to a large extent stand or fall together.

(2)  Insofar as the finding of breach of contract relates, additionally or alternatively, to the references provided by the Bank, then 

(a)  the Industrial Tribunal has arguably failed to give any or any adequate findings for such a conclusion in the review decision reasons, and 

(b)  there is a real argument as to whether the Applicant’s complaint here lies in tort, rather than breach of contract, and if so, then the Industrial Tribunal had no jurisdiction to consider it.

	Accordingly we shall give the following further directions for the disposal of these appeals:

(1)  Both appeals are consolidated and shall be heard together.

(2)  The time estimate of two days allowed for the first appeal will not be further extended.  We consider that two days is sufficient to dispose of the consolidated appeals.

(3)  The case will remain Category C.

(4)  Skeleton arguments shall be exchanged between the parties, not less than 14 rather than the 28 days originally ordered; 14 days before the date fixed for the full appeal hearing, copies of those skeleton arguments to be lodged at the same time as this Tribunal.

	Finally, Judge Hargrove’s direction for Chairman’s Notes of Evidence of the first Industrial Tribunal hearing will stand.