Appeal No.	 EAT/146/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 June 2000

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MR B R GIBBS
MRS D M PALMER

MR ANTHONY JULIAN HALLIDAY	APPELLANT

THE ARCHDIOCESE OF SOUTHWARK	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MS K STEYN
(of Counsel)
Appearing under ELAAS	

	MR JUSTICE MAURICE KAY: 	This appeal is listed before us today for a preliminary hearing upon grounds of appeal and other documentation which have been prepared by Mr Halliday in person. Today, he has had the benefit of the assistance of Ms Steyn under the ELAAS system and with her considerable assistance we have been taken through what she identifies as two grounds of appeal which she seeks to advance before us with the submission that there is sufficient in them for the matter to proceed to a full hearing.

1.	The first ground relates to the process of consultation, which preceded Mr Halliday’s dismissal from his position as Director of Music at St George’s Catholic Cathedral in Southwark.

2.	The second ground relates to aspects of the finding by the Employment Tribunal that there was a redundancy situation.

3.	The case was a difficult one in the sense there was a real issue between the parties before the Employment Tribunal as to whether Mr Halliday had been an employee or had been self-employed. In the event, the Employment Tribunal found for him on that issue and decided that he had been an employee. They also found in clear terms that there had been a redundancy situation. However, they did not consider that he had been unfairly dismissed. Their conclusions were that there had been appropriate consultation, that he had been offered the only other employment that was available and, further, that the Cathedral had acted reasonably in treating redundancy as a sufficient reason for his dismissal.

4.	The case has caused us some difficulty this morning. We are now more familiar than we were initially with the sequence of events that led to the parting of the ways between Mr Halliday and the Cathedral. It is an unfortunate history.

5.	Our task is to decide whether there are points of law that may give rise to an arguable ground or grounds of appeal. 

6.	We do not underestimate the difficulties, which Mr Halliday may face in that regard, but we have come to the conclusion that it would be wrong to stop him in his tracks at this stage. We take the view that this appeal ought to be allowed to proceed to a full hearing. 

7.	We say that in reference to what Ms Steyn refers to as her primary point, the one so far as consultation is concerned. We also think that there is something about the other findings deserving of further consideration. We do not consider that the refusal to allow Mr Halliday to call a witness as to Canon Law was something that disclosed any error of law. Nor are we concerned about the finding in paragraph 34, where reference is made to the cost of the choir. 

8.	We have some residual concern about the tax and National Insurance implications of all that has transpired. It appears to have been common ground that Mr Halliday had discharged his liabilities for tax and National Insurance on the basis that he was self-employed person. The find of the tribunal was that he was employed and we are told that the consequences are that there is a residual liability which could be as much as £45,000 when one goes back over a period of many years. Our concern is one as to how that entered the equation in the process of consultation and particularly as to the fairness or unfairness. We express no final view on the subject of how it was proposed to be dealt with. All this came to a sorry end in the tribunal. It is profoundly regrettable that relations between these parties has reached the level that they have. However, we see it as our duty to permit further argument on the grounds of appeal to which we have referred.

9.	The respondents in their initial response indicated a wish to file a cross-appeal. They were not specific as to that, but one suspects that it may to do with the finding that Mr Halliday had been an employee. If it remains their wish to pursue a cross-appeal, we shall direct that they must provide details of their cross-appeal in their answer, which must be filed within 14 days.

10.	We take the view that this is a case in which the Chairman’s Notes of Evidence will be of assistance to the Employment Appeal Tribunal and they will be bespoken. There will be the usual order as to skeleton arguments.

11.	We are by no means convinced that Mr Halliday is going to succeed in this appeal. There is much uncertainty about it. However, we find ourselves unable to say that he has no arguable grounds of appeal.

12.	It seems to us that, given the nature of the disputes and the history of the disputes, it is profoundly regrettable that all this is going to lead to a further round of litigation and no doubt at considerable expense, which neither side will probably welcome. We do not seek to impose any obligation upon the parties, but we do respectfully suggest to them that this may be a case in which their outstanding differences (and there are a number of them quite apart from those to which we have referred) might not be resolved more easily and more to their reciprocal satisfaction if they were to engage the services of a third party who might mediate between them in the hope that some compromise of their differences could be reached. As I say, we do not impose alternative dispute resolution in this case, but we do invite the parties to consider their position in that regard so that further litigation may be avoided. It goes without saying, that if Mr Halliday’s appeal were to succeed, the probable consequence of that, although it would be a matter for the our colleagues sitting at that time, but the probable or foreseeable consequences of that, if it were to happen, would be that the matter would go back to the an Employment Tribunal for a further hearing with all the time and expense that that would consume. So we hope we are being helpful. Certainly our intentions are to be helpful by making the suggestion that we have just made. It is something that occurred to all three of us.