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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Gooch v Whitbread Medway Inns [1996] UKEAT 706_95_1103 (11 March 1996) URL: http://www.bailii.org/uk/cases/UKEAT/1996/706_95_1103.html Cite as: [1996] UKEAT 706_95_1103

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BAILII case number: [1996] UKEAT 706_95_1103

Appeal No. EAT/706/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11th March 1996

HIS HONOUR JUDGE N BUTTER Q.C.

DR D GRIEVES CBE

MR E HAMMOND OBE

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MR A GOOCH          APPELLANT

WHITBREAD MEDWAY INNS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR T KIBLING

(of Counsel)

Messrs Magrath & Co

Solicitors

52-54 Maddox Street

London W1R 9PA

For the Respondents MR A LYON

(of Counsel)

Messrs Weightman Rutherford

Solicitors

Richmond House

1 Rumford Place

Liverpool

L3 9QW


 


JUDGE BUTTER Q.C.: The question which we have to decide at this stage is whether or not we should give the appellant leave the amend the Notice of Appeal to incorporate his contention that the Industrial Tribunal erred in law in not determining the appellant's claim for unfair dismissal.

Mr Lyon for the respondent says, that the issue of unfair dismissal was not contained in the IT1, which refers in Box 1 to "Breach of Contract (Wrongful Dismissal)". But at the foot of the following page the applicant said:

"" I also believe that I have been dismissed in contravention of Section 54"

And then in the closing part of his accompanying statement he again refers to the question of unfair dismissal.

It is true that it is only in special circumstances that this tribunal today will permit a new point, such as this, to be raised but it is to be observed that the Chairman in his decision, since there had been some discussion about this, says in paragraph 6:

"there was nothing in that Application to suggest any claim other than one for wrongful dismissal."

We have considered the various documents and we are entirely satisfied that this is a case where the Notice of Appeal should be amended as the appellant desires. It is our unanimous view that the application should be granted.

JUDGE BUTTER Q.C.: We are grateful to Counsel on both sides for the short and clear way in which they presented their arguments.

This is an appeal by Mr Gooch against a decision of the Industrial Tribunal held at London (South) on 26th April 1995. The reasons for the decision were sent out on 19th May 1995 though they appear to have been received some time later.

The Chairman sat alone.

The decision states rather curiously perhaps that the "unanimous" decision of the tribunal was:

"that the Applicant's claim for wrongful dismissal fails."

We have today already dealt with the question as to whether the Notice of Appeal should be amended. We gave leave for that to be done. The Chairman did not consider the question of unfair dismissal and it is agreed in the circumstances by both parties that the matter should be remitted to an Industrial Tribunal to determine that issue.

The main argument before us has been whether we should also remit the matter to an Industrial Tribunal to consider afresh the question of wrongful dismissal. Before the Industrial Tribunal the applicant appeared in person. The respondents were represented by Counsel. We mean no discourtesy to the Chairman, when we say that we think it is unfortunate that he sat alone and dealt with the case on the basis of documentary evidence, and said in paragraph 1 of his extended reasons:

"1 None of the facts in this case are in dispute"

There was, in reality, an important dispute as to why the applicant had been dismissed. In the IT3 the respondents said:

"Mr Gooch was not suitable for the proposed development of the premises.

There were no alternative vacancies available."

The Chairman has a statement of Mr Sloan, the then Area Manager, who set out various reasons why the applicant was not regarded as suitable, some of which would involve, or might at least involve, a question of training. According to the applicant himself, he did wish to raise the grievance procedure in relation to his dismissal.

The Industrial Tribunal below found that the dismissal was for:

"17 ... no definable reason",

but made no finding or certainly no clear finding as to the true reason for that dismissal. The authorities establish the need not just for a tribunal to make findings, but also to give reasons, particularly in relation to important parts of the decision. It is also far from clear whether the tribunal below did in fact decide that training provisions formed part of the contract of employment.

Today we take on board Mr Lyon's submissions that the Industrial Tribunal should be slow to import into contracts, the concepts and terms which are relevant to unfair dismissal rather than wrongful dismissal.

Having considered all the arguments we are unanimously of opinion that there are factors here which mean that it would be clearly be wrong for the decision below to stand. We mean no discourtesy to the Chairman, when we say that it might be perceived as involving injustice if the matter were to be remitted to him. We consider in all the circumstances that we should remit on all issues to a newly constituted Industrial Tribunal consisting of three members.