Appeal No.	 EAT/453/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 July 2000

Before
MR RECORDER BURKE QC
MRS D M PALMER
MR G H WRIGHT MBE

MRS C E WILLIAMS	APPELLANT

CAERPHILLY COUTNY BOROUGH COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR M BARKLEM
(of Counsel)
Messrs Maclay Murray Spens London
Law Partnership
10 Foster Lane
London
EC2V 6HR	

MR RECORDER BURKE QC

1	This is the preliminary hearing of an appeal by Mrs Williams against the dismissal of her claims for unfair dismissal, breach of contract and unlawful deduction of wages against the employers the Caerphilly County Borough Council by an Employment Tribunal sitting at Cardiff chaired by Dr Davies and promulgated on 17 February 2000, supported by extended reasons.

2	The Tribunal struck out the Applicant’s complaint on the basis of the absence of  jurisdiction created, they concluded, by the fact that the Applicant had been dismissed on 11 November 1998 and her Originating Application was dated 21 December 1999 and thus, if that was the date of dismissal, as they found it to be, her Originating Application was plainly out of time.  No arguments were put forward to the effect that the time should be extended and therefore the Tribunal, on the basis of its conclusions as to the date of dismissal, had no alternative but to take the course that it did.

3	The facts for present purposes can be briefly stated.  Mrs Williams was a senior employee in the Directorate of Social Services and Housing who was accused by the employers of misconduct.  She was summarily dismissed for that misconduct; she instituted an appeal pursuant to the contractual disciplinary procedure.  The appeal was concluded on 15 June 1999.  It was allowed in the sense that for the penalty of dismissal was substituted the penalty of a final written warning. 

4	The Tribunal found that the employers intended to reinstate Mrs Williams, i.e. to permit her to come back to her old employment and made every effort to achieve that end but, said the Tribunal, Mrs Williams was not willing to be reinstated; she made it clear that she was not willing to be reinstated unless certain conditions were satisfied.  Some of those conditions were not acceptable to the employers including in particular the condition of compensation.  The Tribunal found that the employers had acted reasonably in regarding the imposition of these conditions as unacceptable.

5	There seems to be some issue as to whether the warning was ever given or not, although there was some correspondence which makes it look as though it was.  It is not necessary to go into the facts further.  The essential issue before the Tribunal was whether the employee had been reinstated so that her contract of employment revived as a result of the appeal decision or whether, because she had never gone back to work, she was still out of employment consequent upon her dismissal in November 1998 at the material time after the appeal.  The Employment Tribunal concluded that she was not reinstated and was therefore still out of employment consequent upon the dismissal because, firstly, she was unwilling to be reinstated, secondly, she was working for somebody else, and thirdly, she did not withdraw her original application to the Tribunal on the basis of the November 1998 dismissal until 2 months after the appeal had occurred.

6	There is a great deal of authority on the status of a dismissed employee between dismissal and the hearing of an appeal.  This is not the occasion to go into that authority and we have not been taken to it in any detail by Mr Barklem on behalf of the Appellant.  That status depends at least in part upon the terms of the relevant procedure.  There is very little authority as to the position of an employee who has been dismissed, but whose appeal has been allowed and who has, as a result of the allowing of the appeal, been subjected to some penalty other than dismissal so that her employment would appear at the very least open for her to resume.  The reason for the paucity of authority on that point, we think, is perhaps obvious; there must be only very rare cases in which the employee whose appeal against dismissal is allowed does not forthwith go back into her employment and therefore normally no such problem arises as arose in this case.  Mr Barklem has drawn our attention to one case, Howgate -v- Fane Acoustics Ltd (1981) IRLR 161, in which this Appeal Tribunal held that where an appeal is allowed following dismissal and the dismissal is as a result removed the consequence, in effect, is that the original contract is reinstated and the employee, as a result, is employed under the same contract as he or she was on the date before the original dismissal.  

7	It seems to us, without making any further comment about Howgate, now that it is at least arguable that that was the correct approach to this case and at least arguable that the Tribunal took a wrong approach.  One way in which one can test the situation is to ask, hypothetically, what would have been the result if the employer had been injured by a bus walking home from the hearing of her appeal, had then been unable to work for 6 months and claimed sick pay.  The result might well be thought to have been one in which the employers would have no answer to her claim for sick pay.  One might also ask if there was not a subsisting contract after the appeal had been allowed, under what authority the employers could have been issuing the final warning.  We make no final decision upon any such matters, it is not for us to do so.  But it seems to us entirely clear that there is an arguable point in this case as to the correct contractual analysis of the status of the employee after the appeal.

8	So far as that status is concerned, it may well be that, contrary to the view of the Tribunal, what she though about the situation is irrelevant and whether she acted reasonably or not in failing to go back to work might also thought to be irrelevant because the merits of the situation, although they may have a great deal of importance should this matter ever get back before the Tribunal might not be at all relevant to a proper analysis of her contractual status.  For those reasons in our judgment there is an arguable appeal in this case and that it must go for a full hearing.  The hearing will be listed in category C.