Appeal No. EAT/1300/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 July 2001

Before
HIS HONOUR JUDGE PETER CLARK
MRS A GALLICO
MR B GIBBS

MR G S HOLLAND	APPELLANT

MAXWELL'S RESTAURANT GROUP LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

______________________________________________________________________________

	APPEARANCES

For the Appellant	MRS HOLLAND
(Lay Representative)	

JUDGE PETER CLARK

1.	On 10 December 1997 the Appellant, Mr Holland, presented three separate Originating Applications to the Stratford Industrial Tribunal, now Employment Tribunal, complaining of unfair dismissal, breach of contract and wrongful dismissal.  Only the claim of unfair dismissal remains outstanding; the remainder was settled.

2.	He was employed by the Respondent from 16 April 1996 until 20 September 1997, a period of 17 months.  At the effective date of termination of the contract the qualifying period for unfair dismissal protection, under domestic legislation, was 2 years.  That has since been reduced to 1 year by the Employment Relations Act 1999, but only in cases where dismissal took place after the Act came into force on 25 October 1999.  Mrs Holland who appears on behalf of her son, the Appellant, today accepts that that reduction in the qualifying period does not apply retrospectively in this case.

3.	The unfair dismissal complaint was adjourned pending the outcome of the Seymour-Smith litigation.  Finally, when that case was referred back to the House of Lords by the European Court of Justice the House upheld the 2-year qualifying period.  It was not indirectly discriminatory on grounds of sex as at the date of the dismissals in that case, 1991.  See R v Secretary of State for Employment (ex-parte Seymour-Smith and Perez) (No. 2) [2000] ICR 244.

4.	Following that decision the Appellant was invited to show cause why an order striking out his unfair dismissal complaint should not be made.  He did not respond within the 28-day period specified in the letter and a strike out order was made and sent to the parties on 24 May 2000.

5.	The Appellant made application for review of the strike out decision.  That application was considered and dismissed by a Chairman, Mrs Enid Prevezer, under Rule 11(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 on the ground that the review application had no reasonable prospect of success.  That review decision was promulgated with extended reasons on 30 August 2000.

6.	Against the review decision the Appellant now appeals.  Two points are taken on his behalf.  First it is submitted that there is to be a further ruling by the House of Lords in the Seymour-Smith case.  We are unaware of any further proposed proceedings in that litigation.  It seems to us that the House of Lords has finally determined that case in the decision to which we have earlier referred, reported at [2000] ICR 244.

7.	The second point depends upon the judgment of the Employment Appeal Tribunal in Leicester University Students’ Union v Mahomed [1995] ICR 270, where it was said, in the context of an attempt by the employer to argue a fresh point on appeal, that the qualifying period of service for unfair dismissal protection under domestic legislation did not go to the Tribunal’s jurisdiction.

8.	However, in the same case it was acknowledged that it is a pre-condition to a finding of unfair dismissal that the Applicant has sufficient qualifying service.  In this case Mr Holland did not and accordingly we can see no arguable ground in law for permitting this appeal against the review decision of Mrs Prevezer to proceed to a full hearing with both parties present.  Accordingly the appeal must be dismissed.