Appeal No.	 EAT/0268/03/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 July 2003

Before
HIS HONOUR JUDGE D M LEVY QC
MR B BEYNON
MR A E R MANNERS

EASTBOURNE BOROUGH COUNCIL	APPELLANT

MR J FOSTER	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D STILITZ
(of Counsel)
Instructed by:
Messrs Nabarro Nathanson
Solicitors
Lacon House
Theobalds Road
London WC1X 8RW	
For the Respondent	MR M CURTIS
(of Counsel)
Instructed by:
Mrs C Drage
9 Edward Road
Devizes
Wiltshire SN10 5AR

HIS HONOUR JUDGE D M LEVY QC

1	This appeal arises from the employment by the Appellant Council of Mr James Damian Foster, who is the Respondent to the appeal.  On 1 July 1993 the Respondent commenced employment with the Council as Director of Environmental Services.  On 25 August 1998 a Compromise Agreement was signed by Mr Foster and the Council and a letter of dismissal sent to Mr Foster.  This letter provided for the termination of his employment on the date agreed in the Compromise Agreement, namely 31 August 1999.  On 20 August 1999, the District Auditor wrote to the Council calling into question the lawfulness of the Compromise Agreement.  That was some two days before Mr Foster’s fiftieth birthday.  On 31 August Mr Foster’s employment terminated.  

2	On 30 November 1999 Mr Foster lodged a complaint in an Employment Tribunal which was followed by the Respondent’s IT3 on 20 December 1999.  There were great delays in hearing Mr Foster’s complaint because of High Court litigation to which we have been referred in the course of the hearing.  There was an action heard before Mr Colin Mackay QC, as he then was, which resulted in judgment on 20 December 2000, a Court of Appeal judgment in relation to that on 11 July 2001 and a further Order of Mr Justice Mackay, as he had by then become, on 15 December 2002.  When the dust had settled from those, there was a hearing before the Employment Tribunal.  The Decision was promulgated on 30 January 2003.  

3	The Decision of the Employment Tribunal was that Mr Foster had been unfairly dismissed on the grounds of redundancy and his application succeeded.  The Decision was promulgated on 30 January 2003.  An appeal from that followed with a Notice of Appeal dated 6 March 2003.  The Respondent’s Answer dated 17 April 2003 followed.  We have had the benefit today of very skilled argument from Mr Stilitz, of Counsel, for the Appellant, and Mr Curtis for the Respondent, who had been in the other litigation which we have mentioned.  Taking it shortly, as we think we should, because of the way we intend to deal with this appeal.  

4	The appeal turns, in a sense, in one paragraph of the Extended Reasons which is found on page 53 of our bundle in paragraph 94 of the Extended Reasons.  We were invited by Mr Curtis to read paragraph 94, which is one paragraph as if it contained four paragraphs thus:
“(a) The dismissal does not seem to us reasonable in all the circumstances.  
(b) The sole reason the [Respondent] was prepared to leave the [Council’s] employment was that he had entered into what he thought was a legal agreement of advantageous terms.  But for that agreement he stated, and we accept, he would have remained in employment with the [Council] until he found suitable employment inside the Authority or had negotiated terms to leave.  
(c) It seems to us that it was known to the Council before the [Respondent’s] employment was due to terminate under the compromise agreement that the agreement was ultra vires and therefore void ab initio.  At the stage that the unenforceable nature of the agreement was known to the Council the [Respondent] was still an employee of the Council. 
(d) We find it unreasonable that an employer should treat a long standing employee in this way, in all the circumstances of this case.  It is not for us to say what the Council should have done but we consider that there was much they could have done to avoid this redundancy.”

To make sense of these paragraphs, it is necessary to note that there is a considerable financial advantage to the Respondent if his employment with the Council extended beyond his 50th birthday.  Mr Stilitz says, and this seems to us to be common ground, that sub-paragraph (c) was not argued before the Tribunal and that the findings contained in that were not only wrong but were matters on which he would have liked to have addressed the Council.  

5	We have looked with Counsel in the course of the day as to what was known to the Council, before the employment was due to terminate.  It is clear that before the date of the termination, the District Auditor was making it known that there was a certain unhappiness, but that was not made clear to the Council before the date the Respondent’s employment was due to terminate.  It seems to us that it was not known that the District Auditor had come to a conclusion that the agreement was ultra vires and void ab initio - at least that was known to the Council.  

6	For his part Mr Curtis has submitted to us that in fact he had made submissions that in terms of (b) of the sub-paragraph and that we should read paragraph 94 so that sub-paragraph (d) means that there were two submissions made before us, one in the terms of (b) and one in the terms of (c); we find that that in terms of (d) was right and that the application succeeds for reasons submitted by Mr Curtis.  

7	We quite accept that Mr Curtis did make submissions before the Tribunal in the terms of sub-paragraph (b) but it is not clear to us, and it is far from clear, that the Council accepted those in such a way as to reach (d) without considering term (c).  It may be that the Tribunal could have done that, but in our judgment, it is not clear that they would.  We therefore consider that in the circumstances of this case that what we should do is to send this matter back to the Tribunal so that paragraph (c) can be re-argued, as it was not properly considered earlier by the Tribunal.  It appears to be common ground and the Tribunal should also reconsider whether, as Mr Curtis says, there is a self-standing ground in sub-paragraph (b), as we have broken down paragraph 94, which will entitle the Respondent to succeed on the application.  
[Discussion - Mr Stilitz and Mr Curtis]

8	We have heard submissions as to whether the matter should be remitted to the same or a different panel at the Employment Tribunal.  We consider that although Mr Stilitz is right in saying that we have criticised to some extent the reasoning of the Tribunal, we are quite satisfied that if the matter is remitted to the same Tribunal to reconsider the arguments which were put before them by Counsel who appeared before them, in the light of this judgment, that would be the most proportionate.  

9	We will therefore remit the matter to the same Tribunal, if practicable, in accordance, for reconsideration in the light of this judgment.