Appeal No.	 EAT/722/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1998

Before
THE HONOURABLE LORD JOHNSTON
MR J C SHRIGLEY
MR S M SPRINGER MBE

MRS M B MOUAT	APPELLANT

Q E CATERING LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MISS V BATHER
(of Counsel)
Instructed by:
Glynis Newbold
DAS Legal Expenses Insurance Co Ltd
DAS House
Quay Side
Temple Back
Bristol
BS1 6NH	

	LORD JOHNSTON:		This is a preliminary hearing in the appeal at the instance of Mrs M B Mouat in respect of a decision of the Industrial Tribunal which dismissed her Originating Application for a claim of unfair dismissal against her former employers, Q E Catering Ltd.

	The appeal is presented on two quite separate grounds. In the first place it is alleged that the conduct of the Chairman as the hearing under reference to an affidavit presented to this tribunal by the Counsel who appeared at the time, exhibited bias to say the least and inadequate judicial positions which regard to the submissions that were being made which are sufficient, it was submitted, to vitiate the hearing. The second ground is that it relates to the merits of the case and complains, in our view quite legitimately, that the tribunal failed properly to investigate the full implications of the various contractual variations that were put forward in this case, as to whether or not the test in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 with regard to fundamental breach of contract was met.

	We are absolutely satisfied that the second ground in relation to the merits of the case reveals a highly arguable position which much proceed to a full hearing, not least because the case was decided on the basis of no case to answer without a proper investigation upon the evidence as to the full implications of what the appellant was complaining about in relation to the conduct of her employer.

	With considerable hesitation, because we consider that issues of bias and the like with regard to the conduct of the tribunal and particularly its Chairman, are both difficult to determine and to some extent diverting from the real issue, we will also allow that matter to go forward, though we would urge strongly upon Mrs Mouat’s advisers to consider whether or not the case is helped by embarking further down that track.

	On this basis the case will be allowed to go to a full hearing.