United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 350_94_1811

Appeal No. EAT/350/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 November 1994

THE HONOURABLE MR JUSTICE HOLLAND

MISS J W COLLERSON

MR D G DAVIES

---

MR W INGRAM          APPELLANT

(1) SCREEN RENTALS LTD

(2) ATLAS LEASING LTD

(3) HUNGARIAN INTERNATIONAL BANK LTD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant MR G PRICE-ROWLANDS

(of Counsel)

Messrs. Hartley, Thomas & Wright

Town Hall Chambers

Rochdale OL16 1LW

For the Respondents MR M DUGGAN

(of Counsel)

Chaffe Street

Brook House

70 Spring Gardens

Manchester M2 2BQ


 


MR JUSTICE HOLLAND: This is an appeal by the Applicant from an Order described as interlocutory made by Mrs J. Corcoran, sitting as Chairman of an Industrial Tribunal and given at Manchester on 10 March 1994.

There is a short procedural chronology. On 16 September 1993, the Applicant, Mr Ingram, made a claim for unfair dismissal against Screen Rentals Ltd. He appended to his application a self-drafted statement, which alleged that he had been employed by Screen Rentals Ltd as a credit manager.

On 20 October 1993, the solicitors who by then were acting for Mr Ingram, filed an amended statement which contended that he was employed by Screen Rentals Ltd, Atlas Leasing Ltd and Hungarian International Bank Ltd to be the credit manager of Screen Rentals Ltd. Thus, by that measure, they extended the Respondents to the application from the original company to include the further two companies.

That move on the part of the solicitors was, no doubt, in part founded by a sight of the contract of employment of Mr Ingram, which contract is in our bundle. On the first page of it one sees the heading, "Screen Rentals Limited". It then reads:

"NAME: WILLIAM INGRAM

DATE OF BIRTH: 21.6.47

JOB TITLE: GENERAL MANAGER

RESPONSIBLE TO: HUNGARIAN INT. BANK"

From that beginning, it is manifest that in the background here is a serious legal issue as to the identity of the employers of Mr Ingram. The seriousness of that issue can be gauged by a glance at paragraph 8 of his contract, which is a paragraph imposing a duty of confidentiality and referring to the company. One asks oneself rhetorically and with some forensic excitement as to whether that means that he should keep information private to Screen Rentals or whether he should keep it private to Hungarian International Bank or both. Either way, there is a serious issue at the background to this matter. One, however, then returns to the procedural chronology.

On 7 February 1994 the solicitors for Mr Ingram received a letter from the regional office of the Industrial Tribunals. That letter read as follows:

"A Chairman of the Tribunals has directed that an Interlocutory Hearing be held in the above case, which only the representatives of the parties need attend (or the parties themselves if they are unrepresented), for the purpose of clarifying the issues, and what Orders (if any) should be made."

It went on to specify the place and time for the interlocutory hearing and concluded:

"At the above hearing the parties should be prepared to deal with matters relating to the expected length of the full hearing and to fix a definite date (or dates) for that hearing.

No further notice will be issued."

Having regard to Mr Ingram's means, it was decided that he alone should attend that hearing, that is, that he should not be represented for the purpose of it. Thus it was, we are told, that he attended at the hearing unrepresented and found that there was present there a solicitor, Mr Tranter, appearing for Atlas Leasing Limited and Hungarian International Bank Ltd, that is, the second and third Respondents.

Mr Duggan, who has helpfully withstood the criticisms of the procedure made by this Tribunal, tells us, and we readily accept, that notwithstanding that the parties had come to the hearing for the ostensible purpose set out in the quoted letter, the Chairman, on her own initiative, invited resolution of the issue that had been foreshadowed in a letter from those Respondents, that is, as to whether Mr Ingram was employed by them. Whether or not Mr Tranter sought to dissuade her from this course, she went on and proceeded to deal with it in this way. First, as we can see from the notes made by Mr Tranter, Mr Ingram was invited to make submissions. This, we can see from the notes, he did. It appears that he was questioned on those submissions by the Chairman and, in the event, she made an Order that the second and third Respondents be dismissed from the proceedings. The reasons for the Order, as set out, were terse. They are as follows:

"Having heard Mr Tranter on behalf of the second and third respondents and Mr Ingram I consider that Mr Ingram's employer was Screen Rentals Ltd. He was paid by Screen Rentals Ltd and worked to their instructions. I do not accept that he was also employed by Atlas Leasing Ltd ..."

That Order was purportedly made pursuant to Rule 17 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, Schedule I. That reads as follows:

"(1) A tribunal may at any time, on the application of any person made by notice to the Secretary or of its own motion, direct any person against whom any relief is sought to be joined as a party, and give such consequential directions as it considers necessary.

(2) A Tribunal may likewise, on such application or of its own motion, order that any respondent named in the originating application or subsequently added, who appears to the tribunal not to have been, or to have ceased to be, directly interested in the subject of the originating application, be dismissed from the proceedings."

That being the power available, it was pursuant to paragraph 2 that this Order was made.

Mr Duggan submits, forcefully, that the Chairman had jurisdiction pursuant to that rule to make that Order. On the face of it he is, with respect, totally correct but there is a very important rider. When that jurisdiction is exercised, it has to be exercised judicially and judicial exercise of that discretion in the circumstances of this case, plainly required some explanation, at least, to Mr Ingram of the nature of the issue, and an opportunity given to Mr Ingram to adduce evidence as to that issue. Further, or alternatively it requies an invitation to both parties to assist as to the giving of directions as to the resolution of the issue. What could not be done if the matter was to be handled judicially, was what was done, that is, to seek to make the ruling on the basis of no evidence at all but purely on the basis of submissions made by Mr Ingram. It would seem, in the result, that all that happened was that those submissions were rejected and the end product was a ruling made on the basis of no evidence at all. That can be tested looking at the reasons themselves. The only purported finding is:

"He was paid by Screen Rentals Ltd and worked to their instructions."

The fact that he was paid by Screen Rentals might reasonably have reflected an agreed fact between the parties, that is, a fact that was or could have mounted to evidence, but the notion that he worked to their instructions was based on absolutely no evidence at all. Mr Ingram did not say so and no other witness was called to give evidence to that effect. The end result is that the Order may have reflected jurisdiction but it did not reflect, as we have said, any attempt to exercise that jurisdiction judicially. In the result, there was a manifest and serious breach of natural justice in the making of that order which, in the judgment of this Tribunal, of itself, justifies the allowing of this appeal.

Even were we to take a different view and to look at this as an Order arrived at by appropriate procedural steps, it is manifest on the face of it that it is defective. The concept of employment is a complex one, necessarily reflecting a careful review of all the evidence in a particular given circumstance so that all the indicia of employment can be identified and, if such there be, examined and weighed. A decision that he was employed by Screen Rentals purely on the basis that he was paid by that company and worked to its instructions, cannot be sustained in the circumstances of this case, not least because of the citation from the contract of employment that already features in this judgment. No Tribunal making a ruling that can be sustained in the particular circumstances of this case, could conceivably ignore the foundation for the problem. Thus it is, having approached it in this fashion with the brevity that has been described, the Order itself is founded on a totally inadequate review of the material facts.

Therefore, by that second route, this appeal has to be allowed.

Turning to the way in which we propose to deal with this matter, we are impressed on examination of these papers by the extent to which the issue as to employment is bound up with the issues that arise as to unfair dismissal. One of the aspects of the matter is the way in which Mr Ingram was dismissed from his employment in that it appears that he was dismissed by officers of the Hungarian International Bank. It seems to us to be idle to try to separate as a preliminary issue the matter of employment from the whole problem of unfair dismissal because there is a grave danger of two Tribunals hearing the same evidence successively with an eye to separate considerations. Much better, we think, that one Tribunal should hear the whole matter, bearing in mind that one of the issues for its resolution is that which is taken initially by Atlas Leasing and Hungarian International Bank, namely, that there was no contract of employment. Thus, we remit the case for a full hearing before a differently constituted Tribunal.