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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Smyth v Sparkes & Anor [1998] UKEAT 994_98_0111 (1 November 1998) URL: http://www.bailii.org/uk/cases/UKEAT/1998/994_98_0111.html Cite as: [1998] UKEAT 994_98_0111, [1998] UKEAT 994_98_111

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APPEARANCES

 

For the Appellant	MS J HANLON (of Counsel) Instructed by: Mr R Ruston Messrs Bowser & Co Solicitors 15 South Bank Wisbech PE13 1JL


 


JUDGE BYRT QC: This is a preliminary hearing in an appeal against a decision, promulgated on 20th July 1998, by an Employment Tribunal Chairman, sitting alone, at Bury St Edmunds. In his decision he came to the conclusion that each of the applicants, Mr Sparkes and Mr Hide, were entitled to damages for breach of contract in the amount of £924.88. The employers appeal.

Quite shortly, the facts are that Mr Sparkes and Mr Hide were employed by the appellants as Pub Managers, the public house being the Market Inn Public House, Wisbech, Cambridgeshire. They took up employment in May 1997 and had a licence to occupy premises on the first floor under a licence agreement. In the following December there was a stock taking which showed a deficit in the sum of £1,311.06, and as a result of that, the employers saw fit on 14th January 1998 to call the managers in to account for this deficit. We know not exactly what happened, or what was said on that occasion, but the result of it was that the employers decided there had been gross misconduct by the managers, and accordingly, they terminated the appellants' contracts of employment forthwith.

There was plainly a dispute as to the facts in this case. There was evidence of a stock taking survey report by a firm from outside about which the Chairman came to some fairly decided views. He said it was "very flimsy", that it was "heavily qualified", that it raised questions which were not answered. He therefore decided that there was insufficient evidence to justify a finding of gross misconduct such as to warrant an immediate termination of the contract.

The issues of fact arising, involve a determination as to whether the managers were dishonest, were guilty of gross mismanagement, or had some other explanation for the deficit which had allegedly been found by the stock takers. It is our view that those are issues which are difficult and may be inappropriate for a Chairman sitting on his own to come to a conclusion about.

A tribunal has a jurisdiction to determine questions of breaches of contract by reason of s. 3 of the Industrial Tribunals Act 1996. By reason of s. 4(2) of the Act the tribunal Chairman has a right to determine those issues when sitting alone, but s. 4(5)(a) states he has a discretion where there is a likelihood of a dispute arising on the facts which makes it desirable for the proceedings to be heard in accordance with subsection (1), to order at any stage of the proceedings that the case be heard by a three member tribunal. That is a matter in which the Chairman had to exercise a discretion.

There is no indication in the extended reasons whether he put his mind to that issue in this case, nor does he set out any reasons, if he did put his mind to it, justifying the decision to go ahead to determine this matter sitting alone.

We think that the facts of this case are just the sort of case where a Chairman should be asking himself whether he should adjourn for a hearing with wing members as well. We think that this raises a point of law which should be considered further.

With great respect to all the arguments which have been advanced by Ms Hanlon, we do not think that there are any arguable points in the other matters she raises in her skeleton argument and Notice of Appeal. So in consequence, we give leave for this matter to go forward to a full hearing on the one point we have already indicated.

We think there is a need for further directions.

It would be helpful for Mr Smyth to file an affidavit in which he outlines the gist of the case he advanced before the Employment Tribunal relating to the conduct of the managers in the context of the deficit in the stock taking. We think this would be helpful because Ms Hanlon -and there are no complaints about her conduct of the case for she has advanced her arguments ably and forcefully - but she is currently without proper instructions as to exactly what case Mr Smyth advanced at the hearing. We think that 14 days should be time enough for that affidavit to be filed. Thereafter, that affidavit should be forwarded to the Chairman for his comments, together with an invitation for him to produce any extracts from his Notes of Evidence he thinks supports the views he makes in those comments. That is our direction.

We think that this is case fit for a Category C marking and an estimated hearing time of two hours.