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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Philips Consumer Communications v Somerville [1997] UKEAT 970_97_0611 (6 November 1997) URL: http://www.bailii.org/uk/cases/UKEAT/1997/970_97_0611.html Cite as: [1997] UKEAT 970_97_611, [1997] UKEAT 970_97_0611

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APPEARANCES

 

For the Appellants	MISS S J WEIR (Representative) The Legal Department Philips Electronics UK Ltd 420-430 London Road Croydon CR9 3QR


 


MR JUSTICE MORISON (PRESIDENT): This matter comes before us as a preliminary hearing, the purpose of which is to determine whether there is a reasonably arguable point of law in relation to an appeal which Philips Consumer Communications wishes to make against an interlocutory decision of a Chairman of an Industrial Tribunal, which was promulgated on 22 July 1997 and which is set out at pages 15 and 16 of our bundle.

The background to this appeal can be very shortly stated. The Applicant before the Industrial Tribunal, Mr N. Somerville, had been an employee of Philips Consumer Communications, the Appellants. According to the papers before us, it would appear that he was initially employed in April 1995, and although there is a dispute about the circumstances of the termination of his contract, it would appear that his contract ended very shortly before he had completed two years of service. Nonetheless, he presented a complaint to an Industrial Tribunal alleging against his former employers wrongful dismissal and breach of contract, unlawful deduction of wages and unfair dismissal.

The grounds of Mr Somerville's complaint, as initially put forward, were fairly discursive. He complains about the way the dismissal was effected and says that he would have been employed for the requisite two year qualifying period had the disciplinary procedure been correctly operated and he claims alternatively, damages for loss of his right to claim unfair dismissal. The argument is that he was contractually entitled to the benefit of a disciplinary process; had it been fairly conducted he would have been employed for the requisite minimum period; therefore, he would have had a right to claim unfair dismissal and therefore, the damages for breach of contract should include the loss of the chance to bring a claim for unfair dismissal, for which the Industrial Tribunal would have to award compensation. That is his claim and we say nothing about the merits of it or its legal basis.

The employers dispute that they have done anything other than comply with their contractual obligations, giving him full notice in accordance with his notice entitlement. The reason for his dismissal is referred to in their Notice of Appearance. They took the point, not surprisingly, that they wished to have a preliminary hearing on the question of the Tribunal's jurisdiction. And, in due course, a letter was sent to the parties indicating that there would be a hearing to determine a preliminary issue, namely whether the unfair dismissal legislation applied to the dismissal of the Applicant in view of his length of continuous employment. That was dated 6 June 1997 and when Philips received it, in accordance with their normal procedure, a person of relevant seniority within the Human Resources Department was instructed to go to the Tribunal on the date in question. However, the individual employee went to Solicitors rather late in the day and they wrote on 17 June and indicated that they had just received the papers and they asked for an adjournment.

The Tribunal indicated that the case would proceed as listed and, if the case was to proceed to a merits hearing on unfair dismissal, the Tribunal might look sympathetically at a request made then to deal with all claims at a different hearing; but only if the money claims were left, the parties should by then have a good idea as to the issues remaining and be prepared to argue them. Accordingly, on the date fixed for the hearing the Company attended through their representative, Mr McMullan, personnel officer, and he found himself confronted by Counsel on behalf of Mr Somerville.

Immediately prior to the hearing, it had been indicated that an application for leave to amend the IT1 would be made to add a complaint that, if the Tribunal concluded that Mr Somerville did not have the requisite two years' continuous service under the Employment Rights Act 1996, by virtue of the provisions of European Community Law he would wish to assert that the two year requirement was contrary to the principle of equal treatment and equal pay (what is colloquially known as "a Seymour-Smith point") and he would ask for his application for unfair dismissal to be stayed, pending the European Court's ruling on the questions referred to it by the House of Lords in that litigation.

The hearing, which took place on 9 July, turned into a quite different hearing from that which had been anticipated by Philips Consumer Communications. It became, in effect, a directions hearing. Leave to amend was granted. Orders were made for further and better particulars and mutual discovery. The case was deemed to be a two-day case to be listed before a full Tribunal and it was accepted by the Tribunal that it would have to be pre-listed, having regard to the fact that some of the Respondents' evidence would have to come from abroad. They also provided for mutual exchange of witness statements, which was eminently sensible on the facts of this case and for the agreement of bundles.

The point that is made on this appeal is that, in effect, the Tribunal Chairman never dealt with the point which they had thought was going to be the point and only point at issue on 9 July, namely a determination by way of preliminary issue as to whether there was a competent complaint of unfair dismissal and breach of contract. It has subsequently become apparent that it was the Tribunal's judgment apparently, that everything should be heard together.

We have some sympathy with the position in which Philips have found themselves, but there is no evidence that their representative asked the Tribunal for an adjournment on the ground that he was taken by surprise.

We also are of the view that the Tribunal were entitled to take the view that this was not a case in which it would be easy to isolate any of the issues from the others. I have already indicated, by reference to the IT1, that there is an argument which leads to a potential conclusion that there was either continuity of employment in fact or that there was a case where damages for breach of contract, which might include an assessment of the chances of success of an unfair dismissal application, might have to be made.

In those circumstances it seems to us that it was within the discretion of the Chairman to act as he did, but in order to make the position plain and the basis on which we have given our judgment, we would like to add this. It seems to us that, at the hearing which is to be fixed, the person who should start is the Applicant himself because he will be required to satisfy the Tribunal, if he wishes to pursue his complaint for unfair dismissal, that he has continuity of employment. Accordingly, it would be sensible for the Industrial Tribunal to commence their hearing to deal with his complaints of unlawful deduction of wages and wrongful dismissal because those complaints will enable the Tribunal to reach a view as to whether they have competent jurisdiction to deal with his complaint of unfair dismissal. If they do form the view that they have such jurisdiction then they are entitled, in our view, to continue to hear the case. If they come to the conclusion that they do not have jurisdiction, as the law stands at the moment, then we understand it to be Mr Somerville's position that he would not wish his complaint of unfair dismissal to be proceeded with at that time.

To some extent therefore, there will have to be some kind of preliminary hearing to determine whether the Industrial Tribunal can continue to hear the case of unfair dismissal or whether they should adjourn the matter on the basis of the Seymour-Smith decision.

Accordingly, we are of the view that the decision of the Industrial Tribunal Chairman on an interlocutory matter of this sort, was one which was within his competence to make, bearing in mind that interlocutory judgments of this sort are matters of discretion and we can only interfere if we are satisfied that the discretion has been wrongly exercised.

The appeal therefore, will be dismissed on the basis that I have indicated in this judgment.