Appeal No.	 EAT/30/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 October 2000

Before
SIR CHRISTOPHER BELLAMY QC
SIR GAVIN LAIRD CBE
MR J C SHRIGLEY

MR JAMES PARKER	APPELLANT

SFE LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR N BOOTH
(of Counsel)
Instructed By:
Brachers
12 New Fetter Lane
London
EC4A 1AG	

	SIR CHRISTOPHER BELLAMY:	

1	This matter comes before us today by way of ex parte preliminary hearing to determine whether the Appellant’s appeal from the decision of 18 November 1999 at the Employment Tribunal, sitting at Bristol, dismissing his claim for unfair dismissal and/or wrongful dismissal in breach of contract, discloses a reasonably arguable point of law.  

2	In brief, the Appellant worked for the Respondent company which provides training programmes for schoolteachers.  Tensions arose because the Appellant’s wife apparently formed a company which was in competition with the Respondents, the question being whether the Appellant was thus placed in a situation of perceived conflict of interest.  The main but not the only issue in the case is the proper factual and legal interpretation of the events of 1 March 1999.  The Tribunal found that on that day the Appellant had voluntarily resigned.

3	Before us Mr Booth has advanced, as his principal submission, the contention that on the basis of the facts found by the Tribunal the only proper conclusion is that the “resignation” on that day was not a real resignation but the acquiescence by the Appellant to the so-called “third option” suggested to him by Mr Hill, one of the two Directors of the Respondent firm, whereby he should “notionally resign” and “take a sort of garden leave” and return to work when Mr Bryan, the other Director of the Respondent firm had “cooled down”.  If that is correct, says the Appellant, he remained in the Respondent’s employ and was entitled to be paid while he was “on leave” after 1 March 1999.

3	However, the Respondents failed to pay his monthly salary which was due on 25 March 1999.  By reason of that fact, says the Appellant, he was entitled to treat the contract of employment as repudiated by the Respondents as from 25 March 1999 and to treat that repudiation as a constructive unfair dismissal.  Alternatively, says the Appellant, if the true construction of the facts is that he resigned on 1 March 1999, the so-called third option was not an option at all and he was therefore, in effect, being put in the position of “resign or be dismissed”.  On this alternative hypothesis the Appellant argues that he was actually dismissed on 1 March 1999 and that the Tribunal should have so found.  That is the first alternative argument on this appeal as clarified by Mr Booth in his submissions to us this morning.

4	The Appellant argues in the further alternative, that if it was a true resignation, that is to say in particular, if Mr Hill had not gone so far as to dismiss him on 1 March 1999, then it could only have been a dismissal on notice.  He alleges that the Tribunal’s finding in paragraph 20 of the Extended Reasons to the effect that it was a consensual termination without notice, cannot be supported on the evidence and no sufficient reasons are given for that particular conclusion.

5	The Appellant further relies on certain alleged procedural irregularities including firstly, the reversal by the Chairman of the Tribunal, at the opening of the hearing, of an earlier order by Mr Tickle to the effect that examination-in-chief should be by way of written statements, which allegedly disadvantaged the Applicant and may later have led to an appearance of bias; secondly, the Appellant relies on an expression of view by the Chairman to the effect that the matter turns solely on the events of 1 March 1999, which may have unduly restricted both the evidence offered to the Tribunal and the Tribunal’s approach to the questions with which it was faced; and thirdly, the exclusion of certain similar fact evidence submitted by the Appellant going, so he alleges, to the credibility of Messrs Bryan and Hill.

6	Those are the principal submissions.  We express no view whatever on the merits of those contentions.  Our sole job at this stage is to decide whether there is a reasonably arguable point of law in this appeal.  We consider, having taken into account the papers and the submissions we have received, that the following four arguable points of law may be formulated:

(1)	whether on the facts found the Tribunal erred in law in finding that the Appellant voluntarily resigned without notice on 1 March 1999;

(2)	whether the reasons given by the Tribunal are sufficiently clear and comprehensible to sustain their conclusion that the Appellant resigned voluntarily without notice on 1 March 1999;

(3)	whether the Tribunal erred in law in failing to address the Appellant’s argument that he remained employed until constructively dismissed on 25 March 1999; and 

(4)	whether the procedural irregularities alleged in paragraph 13 of the Appellant’s skeleton argument of 29 September 2000 were such as to effect the validity of the Tribunal’s decision.

7	We therefore allow the appeal to go forward to a full hearing on those points.