Appeal No.	 EAT/490/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 July 1999

Before
HIS HONOUR JUDGE PETER CLARK
LORD GLADWIN OF CLEE CBE JP
MR K M YOUNG CBE

MR P T MOSS	APPELLANT

MILLS & ALLEN LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D SCOREY
(of Counsel)
Instructed By:
Messrs Charles Russell
Solicitors
8-10 Fetter Lane
London  EC4A 1RS

	JUDGE CLARK:	Mills and Allen Ltd, the employer, is an outdoor advertising company with a number of poster sites nationwide.  It has offices around the country.  In July 1998 a restructuring exercise took place.  As a result a number of employees were made redundant on 31 July 1998.  Some of them brought complaints before Employment Tribunal’s.  

1	Our enquiries reveal that four of those cases are currently on appeal from different Employment Tribunals to the Employment Appeal Tribunal.  Broadly, the following issues arise in some or all of those cases.
(1)	Whether the Applicant was unfairly dismissed by reason of redundancy.  There was a lack of individual consultation rendering the dismissals unfair in all the four cases which we have seen.  The employer does not appeal against those findings of unfair dismissal.  
(2)	Whether the Applicant was properly compensated for his unfair dismissal.  
(3)	Whether the Applicant was entitled to a protective award under section 188 of the Trade Union and Labour Relations Consolidation Act 1992. 
(4)	Whether the Applicant was entitled to further commission on sales previously made, following termination of the employment.

2	The four cases on appeal raise the following of those issues.
(1)	Mills and Allen v Fenton 549/99/DA – here the Employment Tribunal awarded commission to the Applicant.  The employer’s appeal against that finding was allowed to proceed at a Preliminary Hearing held on 16 July 1999.  That case therefore raises issue (4).
(2)	Brennan v Mills and Allen 418/99/JS – here the Employment Tribunal refused to make an award in respect of commission.  The Applicant’s appeal was allowed to proceed at a Preliminary Hearing held on 21 July 1999.  Again, this case raises issue (4).
(3)	Moss v Mills and Allen 490/99/ED – the case before us today for Preliminary Hearing.  This Applicant’s appeal raises issue (4) and further, issue (2) as to the compensation ordered by the Tribunal for unfair dismissal.  
(4)	Mills and Allen v Bulwich 154/99/DA – this case raises issue (3) and was permitted to proceed to a full hearing of the employer’s appeal at a Preliminary Hearing held on 27 April 1999.

3	Dealing with the instant case, that of Mr Moss, the grounds of appeal contained in an amended notice, for which we grant leave to amend, fall into three groups.
(1)	Grounds (1)-(3) the commission issue.  We shall permit those grounds to proceed to a full hearing.  
(2)	Grounds (4)-(5).  These grounds deal with an appeal against the Triubnal’s finding of a 90 per cent deduction under the principle in the case of Polkey v A E Dateman [1988] ICR 142.  We are just persuaded that Mr Scorey raises arguable points in relation to these two grounds and accordingly they too will proceed to a full hearing.  
(3)	Ground 6.  This ground is to be the subject of a review hearing called by the Tribunal of its own motion and due to take place on 3 August 1999.  The issue on review is whether the monies earned by way of mitigation of loss should have been discounted in the same way as the compensatory award was discounted under the Polkey principle.  

4	It seems to us that if the review is successful so far as the Applicant is concerned, then he will not need to pursue ground 6 of his amended notice.  On the other hand, if he is successful then it may be that the employer will wish to appeal against that review finding.  If so, then the employer should make application to me for a direction in this appeal.  That will save the need for a fresh appeal to be launched in respect of the review decision. 

5	Conversely, if the Applicant is unsuccessful on the review hearing, then he will wish to pursue ground 6 of the amended notice, and for that purpose he should make an application to me for further directions.

6	It seems to us desirable that in these circumstances all four appeals should be heard consecutively by the same division of this Appeal Tribunal.  We note that in the three earlier cases a time estimate of half a day was given for each.  

7	In these circumstances we direct that the cases be listed over two consecutive days, Category B, before the same division in the following way.  First day, appeals 549/99 and 418/99.  Second day, appeals 490/99 and 154/99.  The Registrar should arrange for one associate to take responsibility for all four cases. 

8	A copy of this judgment should be sent to the other parties in the three other cases.  Any further directions applications should be made to me.  

Skeleton Arguments
9	We see that in the case of Mrs Bulwich, Lindsay J directed that Skeleton Arguments should be exchanged between the parties not less than 10 days before the full appeal hearing and that copies of those Skeleton Arguments, together with the photocopies of all authorities relied on should be lodged with the EAT at the same time.  

10	Since we envisage that all four cases will be heard before judgment is given in any of them, we shall amend that direction and give the following direction in all four cases.  There will be exchange of Skeleton Arguments in the first three cases not less than 14 days before the first day fixed for these full appeal hearings.  Further, the Applicants in the first three cases, that is excluding Mrs Bulwich, will provide copies of their Skeleton Argument to each other Applicant so that all may see what is to be argued on the commission issue.  

11	Copies of all Skeleton Arguments together with photocopies of all authorities relied on must be lodged with this Appeal Tribunal in triplicate at the same time.  This direction is important.  It will allow the lay members of the Appeal Tribunal to know in advance what is to be argued in each of the appeals – it must be complied with.  

12	Finally, I note from the file that Mrs Bulwich has not filed an answer.   As a result she has been debarred from defending by order dated 28 June 1999.  Consequently there will be no exchange of Skeleton Arguments in that case.  The Appellant should lodge its Skeleton Argument with the Employment Appeal Tribunal 14 days before the hearing.