Clark v Clark Construction Initiatives Ltd and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lady Justice Arden,Lord Justice Moore-Bick |
| Judgment Date | 17 December 2008 |
| Neutral Citation | [2008] EWCA Civ 1446 |
| Docket Number | Case No: A2/2008/0668 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 December 2008 |
[2008] EWCA Civ 1446
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Sedley
Lady Justice Arden and
Lord Justice Moore-bick
Case No: A2/2008/0668
UKEAT/0225/07/CEA
Mr J Laddie (instructed by Messrs Chattertons) for the Appellant
Mr J Behrens (instructed by Messrs Bird & Co) for the Respondent
Hearing date: Tuesday 14 October 2008
On 6 February 2006 Mr Clark was dismissed by Mr and Mrs Grew from his post as managing director of a property company which he himself had founded. The Grews, who had injected a considerable amount of capital into the company, had secured the majority shareholding which enabled them to dismiss him. Mr Clark brought employment tribunal proceedings alleging unfair dismissal both for procedural reasons and on public interest disclosure grounds, and also claiming for unpaid salary, failure to provide written terms of employment and payment in lieu of notice. The Lincoln employment tribunal (Mr Goodchild, Mr Kingswood and Mr Smith) dismissed both unfair dismissal claims. They made modest awards for unpaid salary and short notice. They also ordered the claimant to pay a substantial sum in costs to reflect the failure of his public interest disclosure claim.
The reason why the public interest disclosure claim failed was that the tribunal found that the allegation concerning forgery of the claimant's signature was not made in good faith and in any event had not been an effective cause of his dismissal. Nothing now turns on this part of the determination. The reason why the generic unfair dismissal claim failed was that the tribunal held itself to be without jurisdiction. This was because such a claim cannot be made unless the employment has been of at least one year's duration. The tribunal, having investigated the facts, concluded that the claimant had been employed by the company only since the summer of 2005; before that time he was self-employed. The unfair dismissal claim was therefore taken to have failed at the threshold.
This had, however, not been an issue between the parties. The respondents had accepted that there was at least a full year's continuous employment. It was the tribunal which took the point, believing it to go to jurisdiction and so to be incapable of concession or waiver. I will return to this at the end of my judgment. But on the claimant's appeal to the Employment Appeal Tribunal this point was not taken. Rather it was contended that the employment tribunal had misapplied the law and so reached an erroneous conclusion on the duration of the claimant's employment. This broad argument was not repeated before us – unsurprisingly, if I may say so, in view of the comprehensive overview of the law to be found at §61–98 of the judgment given by Elias P in the EAT [2008] IRLR 364, which practitioners will find of considerable assistance in this difficult terrain. Instead James Laddie for Mr Clark focuses on the submission, which had formed part only of his argument below, that the tribunal's reasoning on the issue is vitiated by the citation of untraceable authorities which, like the thirteenth chime of the clock, cast doubt not only on themselves but on all that has gone before them.
For the rest, Mr Laddie's appeal to the EAT was successful. The EAT remitted the case to a fresh tribunal to determine (a) a number of unaddressed allegations of protected disclosure, (b) the appropriateness of the costs order, (c) the unaddressed question of failure to provide written particulars of employment and (d) the proper period of notice. He nevertheless obtained permission to appeal from Mummery LJ, who wrote:
“The skeleton argument dated 17 April 2008 raises some general points about decisions of employment tribunals and their procedure that ought to be considered by the full court. I express no view on the prospects of the appeal succeeding”
The skeleton argument to which Mummery LJ was referring is devoted to a single issue: whether the Lincoln employment tribunal has departed from the universal obligation of judicial tribunals to give reasons which are candid, intelligible, transparent and coherent. Mr Laddie was willing to accept these adjectives as a fair summary of his impressively researched account of the modern sources of the judicial obligation, and James Behrens, for the respondent, was content to adopt them. For my part I accept that these are qualities which litigants and the public are entitled to expect in all reasoned judgments.
Candour, a subjective quality, is what Crewe CJ was describing when he spoke in the Oxford Peerage case in 1625 of the covenant he had made with himself “not to let affection press upon judgment”. It is echoed in the judicial oath to do justice without affection or ill-will. Intelligibility and coherence, which are objective and therefore justiciable qualities, may be achieved in a variety of ways. Transparency, a devalued word but one which is central to this appeal, means here that properly drawn reasons should make it possible for the reader to find sources, especially but not only sources of law, which are referred to but not recited.
The question is whether there has been such a shortfall in these qualities as to vitiate the determination of the employment tribunal...
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Secretary of State for Business Enterprise & Regulatory Reform v Neufeld and Another
...most recent decision on the type of issue that was before the employment judge, that of the Employment Appeal Tribunal in Clark v. Clark Construction Initiative Ltd [2008] IRLR 364 (Elias J, the President, presiding), a decision post-dating that of the employment judge. Elias J had there re......
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R (Sher) v Chief Constable of Greater Manchester
...that English law requires reasons to be given in relation to any decision (see Clark v Clark Construction Initiatives Ltd and Another [2008] EWCA Civ 1446) and that this principle has been found to apply to decisions to grant warrants (see, by way of example, R v Crown Court at Lewes ex par......
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Ms Linda Frame v 1) The Governing Body of The Llangiwg Primary School 2) Neath Port Talbot County Borough Council
...1998, to give reasons. Such reasons should be “candid, intelligible, transparent and coherent”: Clark v Clark Construction Initiatives [2008] EWCA Civ 1446; [2009] ICR 718, at paragraph The relevant principles were helpfully summarised by the President, Chaudhury J, in Kelly v PGA European ......