APPEARANCES
| For the Appellant |
MR D O'DEMPSEY
(of Counsel)
Appearing under ELAAS |
| |
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MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a preliminary hearing the appeal of Miss E Robinson in the matter Robinson v The Royal British Legion Attendants Co Ltd, although in fact that does not seem to be the correct name because the employer was of different name, Legion Security plc. However, that is how our papers are headed and so, for the moment, that is how it stands. Miss Robinson has appeared before us today with the assistance of Mr O'Dempsey through the ELAAS scheme and we are grateful to him for the assistance which he has already given and proleptically for the assistance we can yet expect.
- Miss Robinson lodged an IT1 and it claimed:
"1) Breach of contract
2) Written statement of reasons for dismissal is both inadequate and untrue."
The Originating Application was received on 1st March 1999. She had been employed by the employer for only a matter of weeks, from 11th January 1999 to 4th February 1999.
- There was a hearing on 21st May 1999 in front of Miss E R Donnelly, sitting alone, and the order emerged on 4th June 1999 as follows:
"The application is struck out in pursuance of the powers conferred on me by rule 13(2)(e) of the Employment Tribunals Rules of Procedure 1993 as amended (the 1993 Rules) on the ground that the applicant's claims are frivolous."
- It is perhaps arguable that where an employer has specified a relatively short probationary period (and here Miss Robinson was under employment for a probationary period of 16 weeks) the implication is that that period is needed in order to make a fair assessment of the probationer. Why else specify the period? It may perhaps thus be that the express ability of the company to give one month's notice, which is to be found in Miss Robinson's contract, has to be taken to be suspended as inconsistent during those 16 weeks and that during those 16 weeks the Company is therefore only able to dismiss summarily on such grounds that are appropriate to summary dismissal, namely, gross misconduct.
- Now whether that is arguable on its own or not is not an easy question and might need to be gone into. But particularly would it be arguable if the probationer is neither informed of his or her shortcomings and given an opportunity to correct them and not, either, given appropriate training so as to avoid recurrence of whatever has emerged to be a problem. And here it might be useful to refer White v London Transport Executive [1981] IRLR 261 at paragraph 14. Where it is said there is or may be:
"… an obligation on an employer to take reasonable steps to maintain an appraisal of a probationer during a trial period, giving guidance by advice or warning where necessary. …"
Another case that might need to be looked at is Inner London Education Authority v Lloyd [1981] IRLR 394 at paragraph 11:
"… Mr Lloyd had not received the kind of assistance which ought to have been given to him, …"
A third case would be The Post Office v Mughal [1977] IRLR 178, see the headnote at 253.15, and the submissions at paragraph 9(b) and (f), which submissions were accepted at paragraphs 10 and 11.
- Considerations of that kind, coupled with what Mr O'Dempsey has already addressed us on, lead us to think that it is arguable here that the case should have been fully considered by a panel of three rather than merely to have been struck out as frivolous by a panel of one, under rule 13(2)(e). We think that the appeal should go forward to a full hearing.
- But Miss Robinson's 'home-made' Notice of Appeal (and I do not mean that in any offensive sense, but she has done it herself) does need some trimming and although the matter is going forward, it would not be right to have the full panel that deals with it at the EAT vexed with things that really need not be looked at and so we will invite Mr O'Dempsey to address us briefly on a slimmed-down version which raises only that which surely has some prospect of success. He has already identified the ground that the Chairman, he alleges, referred to wrong documents on deciding what the terms of the contract were and, without anyway taking any view on the merits of the point, we will let that point go forward. He also has a point about the inability to pay in lieu of notice; that, we think, we are perhaps less convinced about but we shall invite him now to address us on such a slimmer version of the Notice of Appeal as can reasonably be composed.
- We give leave to amend generally but it is to be hoped that the Notice of Appeal can be slimmed down. When you have slimmed it down, as far as is reasonable, submit the draft marked for the attention of the President and if I think that the points do have some arguable prospect, they can go forward in addition to the ones we have already mentioned and if I take the view that they really, even then, do not have any prospect of success, we will have to strike them out even then. The amended Notice of Appeal is to be lodged within seven days.
