Appeal No.	 EAT/1054/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 February 2002

Before
HIS HONOUR JUDGE WILKIE QC
MS N AMIN
MISS S M WILSON CBE

MR P J WAINWRIGHT	APPELLANT

M S A (BRITAIN) LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING EX PARTE

	APPEARANCES

For the Appellant	MR I WILSON
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

HIS HONOUR JUDGE WILKIE QC

1	This is an appeal by Mr Wainwright against a decision of the Employment Tribunal sitting at Liverpool following 3 days of hearing on 30 October 2000 and 22 and 23 February 2001.  The unanimous decision of the Tribunal was to dismiss Mr Wainwright’s claims for findings of unfair dismissal, for breach of contract and for a finding that the employer was in breach of the Working Time Regulations.

2	Mr Wainwright’s appeal was launched by him in person in a lengthy document which was then supplemented by a further document pursuant to a requirement by the Registrar of the Employment Appeal Tribunal to clarify where he says the Employment Tribunal were wrong in law.  He has also furnished us with a skeleton argument in which he seeks to identify the nature of his complaint.  

3	What emerges from those 3 documents, as well as his short oral submission to us, is a fundamental and comprehensive disagreement with the findings of fact made by the Employment Tribunal.  What equally becomes apparent is that the root of his case was that he was dismissed for reasons related to his claim that he was being required to work longer hours than those permitted pursuant to the Working Time Regulations.  Indeed, in his ET1 there was attached to that document a schedule giving the details of his complaint.  Paragraph 6 of that document reads:

“The Applicant had complained through his union MSF that the company were in breach of working time Regulations and the real reason for his dismissal was because the Applicant was trying to enforce his rights in relation to Working Time Regulations.”

4	In the course of this morning’s hearing we were greatly assisted by Mr Wilson of ELAAS, representing Mr Wainwright, who successfully crystallised for us the essence of Mr Wainwright’s complaint in law about this decision, namely that it was said that the decision failed at all to address the nub of Mr Wainwright’s complaint, that is that he had been dismissed by reason of his attempt to enforce the Working Time Regulations are far as his work was concerned.  Mr Wilson accurately points out that although in paragraph 3 of their decision the Tribunal states that the applicant alleges, amongst other things, breach of the Working Time Regulations (a claim denied by the Respondent) that they make no reference whatever to Section 101A of the Employment Rights Act 1996 which provides that:

“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee –
(a)	refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998,…”

The only subsequent reference to the Working Time Regulations in the decision is in the very last sentence in which the Tribunal says:

“His complaint under the Working Time Regulations should be dismissed.”

Therefore Mr Wilson contends that the decision itself in its formulation is flawed in that it does not reveal to Mr Wainwright how it is, or why it is, that his complaint that he was automatically unfairly dismissed pursuant to Section 101A has failed.

5	The bulk of the decision is taken up by paragraph 10 and the 17 sub-paragraphs within it in which the Tribunal makes a series of findings of fact.  In paragraph 11 of the decision the Tribunal then addresses the question as to the reason for the dismissal.  In the course of those findings of fact it becomes apparent that the Tribunal was making a series of findings concerning the respective claims and counter-claims as to the number of hours worked by Mr Wainwright, the accuracy of the number of hours claimed by him as having been worked and ultimately the triggering event on 10 March 2000 when he refused to make a visit requested by saying that he had done his 37 hours for that week, following which he was suspended, apparently without pay, and thereafter the disciplinary proceedings took their course which ended in his dismissal.

6	Although it is right to say that there is nowhere in this Tribunal’s decision a statement of what the requirements of the Working Time Regulations are, nor is there any formal finding on their part that there was or was not a breach of such Working Time Regulations (and had there been the decision would have been greatly improved) nonetheless we are perfectly satisfied that within those 2 paragraphs this Tribunal has made findings of fact and set out its process of reasoning manifestly sufficiently to reveal to Mr Wainwright that his claim to have worked longer hours than the Working Time Regulations permitted was being rejected by the Tribunal, and furthermore that they concluded that the reason for his dismissal was not a reason such as is described in Section 101A(a) but was a reason connected to his alleged misconduct, misconduct in which the Tribunal found the employers had an honest belief based on reasonable grounds having undertaken sufficient investigation.  Whilst we understand that Mr Wainwright fundamentally disagrees with those conclusions, those conclusions are matters of fact and do not give rise to any grounds of appeal in this Tribunal.

7	Whilst we would agree with Mr Wilson in his comment that the decision is less than perfect, it would in our judgment effectively be going through it with a fine tooth comb to describe it as one which fails to demonstrate to the parties respectively what the fundamental findings of fact were and why the parties won or lost the case.  Therefore despite Mr Wilson’s attractive argument and his crystallising of the essence of Mr Wainwright’s complaint, it is our judgment that this is an appeal with no reasonable prospect of success.  Therefore it is incumbent upon us to dismiss it at this Preliminary Stage.