Appeal No.	 EAT/1169/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 January 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY
(AS IN CHAMBERS)

MR N J NEWTON	APPELLANT

UNITED BRISTOL HEALTHCARE NHS TRUST	RESPONDENTS

Transcript of Proceedings

MEETING FOR DIRECTIONS

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	
For the Respondent	MR P MILLINGTON
INSTRUCTED BY:
MESSRS OSBORNE CLARKE
SOLICITORS
50 QUEEN CHARLOTTE STREET
BRISTOL
BS1 4HE	

	MR JUSTICE LINDSAY (PRESIDENT):

1.	On 14th May of this year an IT1 was lodged by Dr N J Newton, in the matter Newton v United Bristol Healthcare NHS Trust.  

2.	That  IT1 in the box 1 that is headed “Please Give the Type of Complaint”, it said “No itemised pay statement, other claims dependant on 1” and, in the box, “Please give the dates of your employment” it said “From 1985 to blank”.  So there was a claim as to no itemised pay statement and other dependent claims. That IT1 was, as I said, received by the Employment Tribunal on 14th May.  

3.	On the 4th June 1999, the NHS Trust responded and in their “Particulars of the Notice of Appearance”, at that stage they said (although I am not going to read the whole thing) that 

“The  Applicant is employed by the Respondent to work at the Dental School supervising dental students who treat patients.  The Applicant worked one session per week on a Friday afternoon,. However, he has not worked from Friday 31st July 1998 to date. The Respondent did not consider that the Applicant had given any satisfactory explanation for his failure to report to work.  Accordingly, an instruction was given to its payroll office in December 1998 to suspend the Applicant’s pay on the basis that he was absent from work without authorisation.” 

In paragraph 7.6 they said:-

“In any event the Applicant has not been paid since January 1999 because of his continued unauthorised absence from work”.

4.	On the 29th June, an order was made (as I am told, ex-parte), for the production on the reasonable notice of some particular documents. Shortly before that, dated on the 22nd June, and received by the Employment Tribunal on 23rd June, there had been a second IT1 which claimed unfair dismissal.  Of course, it is inherent in a claim for unfair dismissal that the person claiming is indicating that, in his or her belief, he or she has been dismissed.  For all that, box 4 said, “Please give the dates of your employment” and the dates given were “1985 to present”. Thus that second IT1, which was given the number 1401503/99 began in a somewhat confusing way.  That second IT1 03/99 brought forth from the NHS Trust very full particulars of its defence in effect.  

5.	The particulars of the Notice of Appearance to the second IT1 begin in my present bundle at page 44 and by now it seems that the attitude of the trust was that there had been a termination of employment.  The introduction at paragraph 2 says:-
“From May 1998 until the termination of his employment in June 1999, Dr Newton was involved in a long running dispute with the Respondent”.

And then a little later:-
“Although Dr Newton’s non-attendance at work was one of the reasons why his employment with the Respondent was terminated, it is denied that the Respondent has acted in breach of s100 ERA”.

And at paragraph 3
“If it is found that Dr Newton was dismissed from the Respondent’s employment, it is denied that the reason (or the principal reason) for the dismissal was that” and so on.

6.	So it was accepted in that 03/99 Notice of Appearance that Dr Newton’s employment was terminated but it was in issue as to whether that termination was brought about by a dismissal on the part of the Trust and it was also said that if there had been a dismissal, well then, certain factors were brought in as they are there set out.

7.	On the 5th August of this year, there was a hearing at the Employment Tribunal and interim relief which apparently had been sought by Dr Newton was refused.  I have not, amongst my papers, got anything in terms that deals with that except that on my page 14 there is this reference:-
“In case number 03/99 he [that is Dr Newton] sought interim relief on the basis that he was dismissed as a representative of workers on matters on health and safety at work; and that interim relief hearing took place on 5th August 1999.  The Tribunal concluded that the Applicant was not entitled to that particular remedy and so the application was dismissed.
At the same hearing the applicant’s other claim, which was expressed to be in respect of a failure to supply itemised pay statements (“the pay statement claim”) was considered and the specific allegation of a failure to supply such statements was struck out on the basis that it was misconceived and that it would be frivolous to permit it to continue”.  

So that dealt with the Interim Relief Claim.  

8.	On 6th August, that is to say the next day after the hearing, even though there was, at that stage, nothing in writing by way of summary or extended reasons, Dr Newton sought a review, presumably on the basis that on the 5th August there had been an oral indication of what was to be the Tribunal’s decision.  On 13th August, summary reasons were given in connection with the matters determined at the hearing of 5th August.  On 25th August, there was 3rd IT1. I have not got a copy which has the number on it but I think it must be No. 140121/99. That third IT1 claims “Unfair dismissal, detriment(s), unlawful deductions and breach of contract” and again there is a confusion inherent in the matter in the sense that it says “Please give dates of your employment” and it says from “1985 to date”.

9.	On the 2nd September the Employment Tribunal sent to the parties the extended reasons for the decision emerging out of the hearing of 5th August.  The Extended Reasons which begin at my page 17 announced the decision which is as follows:-

“The unanimous decision of the Tribunal was that:-

(1)  There should be no Pre Hearing review in this case.

(2)  	The applicant’s allegation of a failure to supply written pay statements is struck out as frivolous.

(3)	The Originating Application is amended to add a claim of unlawful deductions from pay.

(4)	There be a combined proceedings order in respect of this case and 1401503/99

(5)	The stay in respect of case number 1402503/99 is not to preclude compliance with the following directions:-

(a)	The applicant within 21 days is to lodge with the Tribunal and the respondent any proposed amendments to his application

(b)	Further directions in this case to be postponed pending any such application.”

And then there are, as one would expect, Extended Reasons - only a page and a little - which were sent to the parties.  On the same day, the review which had been asked for even before reasons were given or at any rate at that earlier stage, was declined in writing, with reasons which were sent to the parties on 2nd September.  The Chairman, Mr C G Toomer, said that he had refused the application since it had no reasonable prospect of success and he had set out the reasons for that in that decision sent to the parties.  

10.	On 29th September, the Employment Tribunal wrote to Mr Newton indicating that “the only decisions which the Tribunal has made are those which you [Dr Newton] have already received.”  And then on the 5th October, there is the Notice of Appeal put in front of the EAT.  There has been no preliminary hearing as yet.  Although Dr Newton has put in a skeleton argument and a draft order that he would wish to have made today, it seems to be quite impossible to make an order of the kind that he seeks.  

11.	I have tried to draw to his attention that the only relevant function of the Employment Appeal Tribunal is to deal with errors of law that are identified in decisions of the Employment Tribunals and that the function of a Notice of Appeal is to identify such errors of law as the Appellant claims to exist.  Of course, if an order emerges from an Employment Tribunal which the EAT identifies as having been made in error of law, the Appeal Tribunal can set it aside and can either make its own order afresh or can remit it back to the Employment Tribunal and have the matter reconsidered.  

12.	What we must therefore concentrate upon here are what are the material orders made by the Employment Tribunal, what are the alleged errors of law in relation to those orders and what is appropriate by way of relief, should it transpire that there errors of law in those orders of the Employment Tribunal.  The ordinary course that these cases take is that the Notice of Appeal is followed by a preliminary hearing.  The function of the preliminary hearing is to see whether such errors of law as are specified in the Notice of Appeal have any reasonable prospect of being upheld, because if they have none then it is a kindness to the Appellant to deny his appeal at that stage rather than involving him in bringing in the Respondent to argue against him, with the potential risk as to further costs and delays.

13.	There has, as I have said, has yet been no preliminary hearing.  I have failed to see why this matter should not take the ordinary course of next going to a preliminary hearing.   But the matter, as I have indicated, is proceeding in a confused way.  In two separate IT1’s Mr Newton has claimed unfair dismissal.  The application for interim relief was very probably predicated on the basis that there had already been a dismissal.  He does need to sort out quite what his attitude is to whether he has been dismissed or not.  Mr Millington, for the Trust, appearing before me today, has made it clear that the Trust’s attitude is that not later than the 17th  June 1999.  Mr Newton’s employment by the Trust had ended but that the Trust wishes to reserve its position as to whether that ending was brought about by way of a dismissal or not.  

14.	It behoves Dr Newton, having heard that by way of clarification from the Trust, to think carefully about what are the errors of law which he wishes to assert to be errors of law in the extended reasons that he was given on the 2nd September of this year, firstly, on the substance of his claims, and secondly, on the declining of a review.  So first he must identify what he claims to be errors of law.  

15.	At the moment, the Notice of Appeal has in its paragraph 6, under the heading. “The grounds upon which this appeal is brought are that the Industrial Tribunal erred in law in that”:-
“six sub headings. They are not at all clear; for example, numbers (ii) and (iii) have within them a whole series of “ifs”;  namely “If the Respondent’s letter of 17th June 1999 was intended to be a letter of dismissal”; and “If it was found to be effective” and “If he was thereby dismissed” and so on.  It really does behove Dr Newton to concentrate on precisely what errors of law he asserts are inherent in the decisions of the 2nd September 1999.  

16.	As I have understood it, those decisions of the 2nd September are the only decisions which he is appealing against, and, as I have indicated, the Tribunal has indicated they are the only decisions made in the sense that they are the only ones that have already been received by Dr Newton.  It is not for me to formulate for Dr Newton how his Notice of Appeal should be reframed, but I do suggest that before the preliminary hearing, he should concentrate in the manner that I have indicated and if, having done, that he wishes to reframe his paragraph 6 in particular, or any other part in his Notice of Appeal, it would be wise of him to send a copy not merely to the Employment Appeal Tribunal, ahead of the preliminary hearing, indicating that is what he wishes to do, but to send a copy also to the Trust’s solicitors.  The Trust solicitors will not appear at the preliminary hearing. It will be a matter at which only Dr Newton or his advisers are heard, but he must, by then, have sorted out precisely what errors of law he claims can be identified in the decisions of the 2nd September 1999 both as to the substantive decision and the failure to review.   I do not think, at this stage, I can do more than that.