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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> HM Prison Service v. Gundill [2001] UKEAT 1375_00_0405 (4 May 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1375_00_0405.html Cite as: [2001] UKEAT 1375_00_0405, [2001] UKEAT 1375__405

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APPEARANCES

 

For the Appellant	MR R HILL (Of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS


 


JUDGE WAKEFIELD

1. This is an Ex Parte Preliminary Hearing of an Appeal by H M Prison Service against the refusal by an Employment Tribunal sitting at Hull on 10 October 2000 to review their decision dated 17 May 2000. The May decision dealt solely with the issue of compensation.
2. In making their calculations as reflected in their decision the Tribunal relied on Section 88 of the Employment Rights Act 1996 which had not been referred to in the course of the hearing. In reliance on that section they awarded the Applicant (the present Respondent) full pay for a 12-week period in circumstances where the Appellant had argued for a rate in terms of the Respondent's pension.
3. In the decision now appealed against the Employment Tribunal acknowledged that Section 88 of the Act did not apply to the case they were dealing with by reason of Section 191 of the same Act. They however refused to alter the calculation for the relevant 12-week period giving the following as their reasons for that refusal:

"(1) This was a Remedy Hearing and it was therefore inevitable that the question of payment during the notice period would be argued and section 88 is the section which applies in the vast majority of cases.

(2) During the discussions before lunch one of the Tribunal lay-members raised the question of Counsel of pay during the notice period as there had been reference to the changes in sick pay after a lengthy absence and the Applicant had been absent for a long time. Apparently this caused some confusion for the Respondent's side because Miss Baldwin, the Hull Prison Personnel Manager indicated that telephone calls would be made during the luncheon break.

(3) During the luncheon break the Tribunal calculated the compensation on the basis that section 88 applied and came back to announce its decision which was noted by both Counsel without protest.

(4) Throughout the hearing, section 88 and Section 191 were never mentioned although it must have been obvious that notice pay and the basic award would be the only substantial sums involved.

(5) Mr Hill (That is Counsel for the present Appellant) frankly admitted that he only thought of section 191 ten minutes after the close of the proceedings after everyone had left the Tribunal room. In view of the fact that Mr Hill is Treasury Counsel and that Miss Baldwin is Personnel Manager at Hull Prison it seems odd that the Tribunal was not offered the appropriate guidance on that point. There was no indication that Mr Hill would not have been heard had he raised the point at the very last moment."

4. In so refusing to review their decision we consider that the Employment Tribunal may have gone wrong in law. It is certainly arguable that they did so and the Appeal must go forward to a full hearing.