Appeal No.	EAT/1107/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 October 2002

Before
HIS HONOUR JUDGE PETER CLARK
MR C EDWARDS
MRS J M MATTHIAS

MR JACK BROWN	APPELLANT

FIRTH RIXSON SPECIAL STEEL LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	No appearance or 
representation by or 
on behalf of the Appellant
	
For the Respondents	No appearance or 
representation by or 
on behalf of the Respondents

JUDGE PETER CLARK

1	The substantive appeal in this case is brought by Mr Jack Brown (the Applicant) against a Decision of the Sheffield Employment Tribunal, dismissing his complaint of unfair constructive dismissal.  The Tribunal found, applying the well known test formulated by Lord Denning MR in Western Excavation (ECC) Ltd -v- Sharp [1978] IRLR 27, that:

(a) the Applicant had affirmed the Respondent’s assumed repudiatory breach 
of contract, 
and
(b) such breach was not the cause of the Applicant’s resignation.  

The appeal was permitted to proceed to a full hearing at a preliminary hearing held before a division presided over by Holland J on the grounds set out in an Amended Notice of Appeal dated 13 March 2002.  

2	On 13 August 2002 the Respondents’ solicitors applied to the Appeal Tribunal for an Order asking the Chairman, Mr S Keevash, to provide his notes of the oral submissions made by Counsel for the Applicant below in resisting the Respondents’ application to dismiss the claim at the end of the Applicant’s case on the basis that there was no case to answer.  That application succeeded before the Employment Tribunal.  

3	The Respondents contended, in support of the application for Chairman’s Notes, that in the appeal the Applicant was taking a new point not taken below, namely that during the period between the Applicant going off sick in February 2000 and his eventual resignation on 20 September 2000, he had not given any indication of a willingness to be bound by his contract so as to affirm it.  The Applicant resisted that application on the basis that no new point was being advanced.  It is said, in written representations before me for the purposes of this interlocutory appeal, that at most the grounds of appeal represent a re-formulation of the “affirmation point” which was considered and determined by the Employment Tribunal.  

4	On 5 September 2002 the Registrar refused the Respondents’ application for Chairman’s Notes.  Against that Order this appeal is brought.  I am asked to determine the appeal on the papers and written representations made by each party.

5	I accept the principle that this Appeal Tribunal will not, save in exceptional circumstances, entertain a new point of law on appeal which was not taken below.  Jones -v- Governors of Burdett-Coutts School [1998] IRLR 521; Glennie -v- Independent Magazines (UK) Ltd [1999] IRLR 719.  The question is whether the Applicant is taking a new point.

6	In my judgment he is not.  The question as to whether or not he waived the assumed repudiatory breach on the part of the Respondents and thereby affirmed the contract, disentitling him to claim constructive dismissal, was plainly before the Tribunal on the face of their Extended Reasons.  The summary of Counsel for the Applicant’s submissions at paragraph 6 makes that clear.  Whether or not the Tribunal reached a permissible conclusion in finding that the Applicant did affirm the contract and thereby waive the breach is the issue for the full hearing of the substantive appeal.  

7	There has been no Order for Chairman’s Notes of Evidence.  Accordingly that question will be decided on the Tribunal’s findings of fact contained in their written Reasons.  This interlocutory appeal is dismissed.