Appeal No. EAT/564/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 October 1996

Before
HIS HONOUR JUDGE H J BYRT QC
MR K M HACK JP
MRS E HART

MISS D E LYTHE	APPELLANT

HEREFORD & WORCESTER COUNTY COUNCIL
& ANOTHER	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR G CLAYTON
(Solicitor)	

			JUDGE BYRT QC:   This an application to this Tribunal on a preliminary point, relating to the decision of an Industrial Tribunal in which they decided that the Applicant, a teacher, had not qualified by reason of three years’ continuous employment for a redundancy payment.  

	Briefly the facts are that this lady was employed on a fixed term contract of three years, commencing on 30 April 1992.  It was stated in two letters dated 13 April and 7 May 1992 that her contract would end on 31 March 1995.  It is conceded by Mr Clayton, who is arguing this matter on behalf of the Appellant, that quite plainly while the matter was left there, she would not qualify at all for a redundancy payment.  In due course it was agreed that the period of employment would be extended till 24 April 1995, which happened to be the end of the holidays of the school concerned.  If extension was taken into account, it would mean that the Appellant was still six days short of her three years’ continuous employment.

	Mr Clayton makes the point - which was not taken before the Tribunal below or indeed on the application for review - that if you take into account the provisions of paragraph 4 of Schedule 13 of the Employment Protection (Consolidation) Act 1978, you have to, in making your computations, take into account the week commencing 24 April which is a Monday.  If this is done, this lady would then qualify for the 156 week period of continuous employment, and as such, would qualify for redundancy payment.  He would now wish to argue this matter before a full Tribunal here.  The difficulty, he concedes, is that this point was not taken before the Tribunal below, but he says that this a matter which goes to the jurisdiction of the Tribunal and therefore the authority Kumchyk is not the last word in the matter.  He has drawn our attention to another case which apparently has been recently decided but has not yet been reported.  This is the case of Castle v Pink Development which says that where the matter relates to jurisdiction, the Industrial Tribunal should, on application being made for review, consider that matter.  Though the transcript had not been produced for us to consider, the proportion so stated is not particularly surprising.

	Our view is that if there is such an authority it ought to be produced to this Tribunal and argued.  That is the first point.  The second point is that once it is conceded that the Appellant does have a right to take this point before us, it seems to us the relevance of paragraph 4 Schedule 13 be argued and considered.  

	On both those grounds therefore we are going to give leave for this case to proceed.  Our leave is limited to those two points being taken: first, the right of the Appellant to argue the question of jurisdiction, where it was not taken before the Industrial Tribunal, and secondly, the relevance or otherwise of paragraph 4 Schedule 13 of the Employment Protection (Consolidation) Act 1978.