England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		The Royal Courts of Justice The Strand London Wednesday 12 December 2001

Wednesday 12 December 2001

1. LORD JUSTICE SEDLEY: Mr Soteriou, before this Court in person this morning, seeks permission to appeal against an aspect of a decision of the Employment Appeal Tribunal. The appeal itself arose in the following circumstances.
2. Mr Soteriou had been working for the respondent companies, or some of them. When their contractual relationship with him was terminated, he took proceedings in the Employment Tribunal for unfair dismissal. By their respondents' notice the respondents put, as far as I can see, two matters, and two matters only, in issue: (a) whether Mr Soteriou was employed by them at all and (b) whether, if he was, the contract of service was tainted by illegality so as to disable him from suing. The Employment Tribunal sat and heard these two "preliminary points", as they described them. They were, however, preliminary not to the question of whether the dismissal had been fair, but only to the question of how much compensation, and what form of compensation, Mr Soteriou should have. I say this because no substantive defence was advanced to the allegation of unfairness. Instead the respondents took the two points that I have mentioned and no others.
3. The Employment Tribunal held that Mr Soteriou had been, at least latterly, employed. There is no appeal against that finding. He has it under his belt. The Tribunal, however, went on to hold that the contract of employment was tainted by illegality so that he could not recover. Against that he has appealed, and the Employment Appeal Tribunal under Lindsay J, its President, has said that it is not an apt case for summary dismissal and it must go to a full hearing. With that, if I may respectfully say so, I entirely agree. It would clearly have been quite wrong for this case to have been decided against Mr Soteriou without a hearing; indeed it seems to me that he may have strong grounds for succeeding on the question of illegality.
4. What he comes before this court to seek is permission to appeal not, obviously, against the survival of his appeal to the EAT but against the limitation of the issues to the question to the one I have described.
5. It is clear from discussion with Mr Soteriou in court this morning that he wants to expand the ambit of the appeal to the EAT for reasons which I think I can fairly say are reasons of over-anxiety. He has, for example, sought by correspondence to get the respondents to admit by their solicitors that they are not going to try to justify the dismissal. They have refused do so. It seems to me that in that case they are spitting into the wind. He is concerned also that the degree and extent of unlawful activity on the part of his former employers needs to be known. This I do not see at all. That there were illegal purposes in the contract is known and is found. The question is to what extent, if at all, Mr Soteriou is tainted with those illegalities and whether therefore he should fail in his attempts to bring proceedings upon the contract. Those are limited matters which go not to the depth or quality of the respondents' illegality but to the implication or non-implication of Mr Soteriou in it.
6. If and to the extent that further evidential material is appropriate (because Mr Soteriou feels that he was prevented from giving the evidence that was relevant and necessary to the Employment Tribunal) the EAT has powers to receive further evidence and will no doubt exercise them in so far as it may be appropriate to do so. It also has power to remit to an Employment Tribunal for the reception of further evidence if that is the more appropriate course. So it seems to me that Mr Soteriou has lost nothing and gained everything by the terms upon which the Employment Appeal Tribunal have allowed his appeal to go ahead.
7. It is not for hearing until May 2002, something which, I fear, reflects the state of the EAT's lists. Mr Soteriou tells me that meanwhile he is almost penniless and is dependent upon the outcome of these proceedings for his economic survival. I am sorry that there is not more that I can do to help on this score, but if he wishes, with a copy of this judgment (which is to be transcribed for him at public expense), to go back to the EAT to see whether his appeal can be accelerated, I am sure that the Registrar will do what can be done in that regard. Barring this, there is no more that I can do to help Mr Soteriou, except to reassure him that his appeal is under way on everything that matters to him and that the EAT will take good care that nothing goes by default.
8. In those circumstances, as is evident, I will not give Mr Soteriou permission to appeal, (a) because there is nothing worth appealing and (b) because an appeal would actually hold up his EAT proceedings for a very long time.
ORDER: Application refused. Transcript of this judgment to be provided to the applicant at public expense. (Order not part of approved judgment)