United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 962_95_1212

Appeal No. EAT/962/95

EAT/1236/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12 December 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

DR D GRIEVES CBE

MR W MORRIS

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MS U RINIKER          APPELLANT

UNIVERSITY COLLEGE LONDON          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of two appeals. The Appellant in both cases is Ms Ursula Riniker. The Respondent in both cases is University College, London.

The first decision appealed was made a hearing by the Industrial Tribunal at London North on 20 April 1993. At the hearing Ms Riniker argued her case in person. She won two out of three points decided by the Tribunal. The three points were these. First, that she had continuous service to enable her to bring a claim under case No.45417. Secondly, the Tribunal were not prevented by Section 67(2) of the Employment Protection (Consolidation) Act 1978 from considering her claim of unfair dismissal in another application No. 61613.

The third point Ms Riniker lost. That was in yet another case, No. 55840. The Tribunal held that that was not within the jurisdiction of the Industrial Tribunal. There was then an application for a review. The review decision is dated 27 July 1995. The Tribunal was constituted as before. In the review decision, notified to the parties on 11 October 1995, the Tribunal held unanimously that her application for a review of the decision in case No. 55840 was dismissed.

Ms Riniker appeals against both the first decision (which I shall refer to as the original decision) and the second decision (which I shall refer to as the review decision). She has taken many points in the numerous papers in this case and in her skeleton argument. The purpose of today's hearing is to decide whether any of these points raise arguable questions of law which this Tribunal would have jurisdiction to decide. We have no jurisdiction to decide fact. We have no jurisdiction to hear appeals against decisions of fact by an Industrial Tribunal.

During the course of almost two hours discussion, we have ascertained that there are two possible areas on which there should be a full appeal. There are arguable points which ought to be dealt with at a full hearing. We are also of the view that there are many points of detail which should not be allowed to clutter up a full hearing and distract the attention of those arguing it and those deciding it from the real points in the case. We shall identify the points for the benefit of the Tribunal that has to deal with the full appeal, for the benefit of Ms Riniker, if she conducts the case herself, for the benefit of anybody she engages as her representative, and for the benefit of University College, not represented today.

The first point on which we have had most discussion is the decision of the Industrial Tribunal that it had no jurisdiction. The basis on which they said they had no jurisdiction to hear the claim of unfair dismissal in Case No. 55840 was that you can only bring a case of unfair dismissal if you are an employee at the relevant time.

An employee is defined in Section 153(1) of the 1978 Act as an individual who has entered into or works under a contract of employment. The relevant contract in this particular case was not one which Ms Riniker worked under. The question was, therefore, whether she had entered into a contract of employment. She said she had. University College said she had not.

The point on which the Industrial Tribunal decided against Ms Riniker was explained in the full reasons for the decision notified on 12 August 1993, paragraphs 13, 14 and 15. The reason why the Tribunal said that Ms Riniker was not an employee and therefore could not complain of unfair dismissal, was that the agreement before the Tribunal was not, in the view of the Tribunal, a concluded agreement which could count as a contract of employment within Section 153. It was not a concluded agreement because there was no agreement on salary.

The summary of the Tribunal's reasoning is at the end of paragraph 15

"15 ... In the absence of any agreement as to salary, we hold that the Applicant did not enter a contract of employment on 18 May 1992 and that, accordingly, the Tribunal does not have jurisdiction to consider that complaint. ..."

They added that it was unnecessary, in those circumstances, to consider whether the complaint was brought within time.

Ms Riniker argues that that is an erroneous decision in law. Her point, as we understand it, is that you can have a valid contract of employment, under which you have never done any work, even though that contract does not spell out the salary or remuneration to be paid. That is the point that she sought to argue on the application for a review which was unsuccessful.

In the full reasons refusing the application for a review, the Tribunal referred to the decision declining jurisdiction. They referred to the submissions of each side on the application for a review and said this:

"5 The issues for consideration in relation to Application 55840/92 at the hearing on 20 April 1993 were whether the Applicant's claim in those proceedings was within the jurisdiction of the Tribunal and whether the application had been made in time. The question of whether or not the Applicant had concluded a contract of employment with the Respondents therefore inevitably arose, since the Applicant's claim in that application was within the jurisdiction of the Tribunal only if she could show that she became an employee of the Respondents within the meaning of section 153 of the Employment Protection (Consolidation) Act 1978 ..."

They said that Ms Riniker had never, at any time, contended that she reached an agreement with University College on her salary for the period 1 October 1992 to 30 September 1993. She submitted that the absence of any such agreement did not prevent a contract of employment from having been concluded, because she always undertook work in previous years before she knew what her salary would be and because her relationship with the Respondents was one of trust. In support of that she adduced evidence that others regarded her as having been appointed to teach in the period 1992/1993.

The conclusion of the Tribunal was that Ms Riniker had had a full and proper opportunity to deal with the question of a concluded contract at the original hearing. There were disputes about various matters which had arisen in relation to the original hearing, but the crucial finding of fact on which they based their decision, namely that there was no concluded contract because there was no agreement of salary, had not been challenged. She did not apply for an adjournment to enable her to deal with the matter or suggest she was at a disadvantage. There was no procedural mishap which would justify granting a review in the interests of justice. They dismissed the application for a review.

On this hearing Ms Riniker repeated her argument that she did have a concluded contract of employment. It was a valid contract, even though nothing was expressly said in it about salary. She referred, in support of her case on a concluded contract, to documents contained in a joint bundle for the preliminary hearing of 20 April 1993, particularly the documents from page 31 to 38 inclusive.

We are satisfied that it is arguable in law that you can have a binding contract of employment under which you have not done work, even if the contract does not expressly provide the rate of salary.

There is an arguable point that you could have such a valid contract where, for example, there had been a previous course of employment relationships and dealings between the parties under which salary payments were made. On the basis of such payments an implication could be made into a contract, which did not deal expressly with remuneration, that the remuneration was, in the absence of express agreement to the contrary, to be paid at the same rate as under the earlier contracts. We do not have to decide whether this is legally correct or not as a proposition today. We think it is arguable enough to justify a full hearing at which University College can be represented. Both sides can put their views to the Tribunal before the Tribunal makes a decision.

The second point is more difficult to deal with on a preliminary hearing. It arises on an application in which Ms Riniker succeeded in the preliminary point. On her application in Case No. 45417 she won her point that she had continuous service to enable her to bring the case. Prima facie she cannot appeal.

You cannot normally appeal on a ground of law against a ruling in your favour. Ms Riniker argues that, in the course of coming to a conclusion in her favour on continuous service, the Tribunal made an error of law in deciding that the date of termination of her contract was 30 June, not 30 September, as she contended. She submits that this is an important matter because it affects the way in which she can advance other claims she has in other cases. She has made particular reference to a claim in another case No. 00812 of denial of access to an occupational pension scheme, a claim based on the Equal Pay Act 1970 and on European Community Law.

She argues in her Skeleton Argument that there is an error of law in saying that her contract of employment terminated on 30 June. She submits that it was based on a misunderstanding of the evidence and was against the evidence.

In our view, it is difficult to detect an arguable point of law and it is even more difficult to see how Ms Riniker is entitled to raise it in the context of a decision in her favour. We do, however, understand that there are practical grounds on which she might be adversely affected by the ruling on the date of termination, even though that ruling did not prevent her from succeeding on the point under immediate consideration.

We propose to allow Ms Riniker to argue that point at a full hearing on the limited basis that, although it will not be of direct relevance to the case in which the decision arose, it may have some adverse impact on her rights in relation to other cases before the Tribunal.

For those reasons, we direct that these two appeals proceed to a full hearing. Attention at the full hearing should concentrate on those two areas to the exclusion of the many other detailed complaints contained in the papers about the way in which the original hearing and the review hearing were conducted.

Those complaints do not constitute an error of law and do not assist in determining the real issue between the parties, first, whether the Tribunal has jurisdiction to entertain one of the cases and secondly, whether a decision on the date of termination in another case can be said to be legally wrong.

We would say this in conclusion. It will be of assistance to this Tribunal, at the full hearing, if University College is legally represented in order to deal with points that may affect Ms Riniker is, of course, entitled to present her own case in person, as she has done before the Tribunal at the original hearing and on the review hearing. But, if she is able to obtain legal advice and representation, it may be both to her advantage and to ours.

It is possible to obtain representation in this Tribunal on legal aid, although legal aid is not available in the Industrial Tribunal. This judgment would explain to the legal aid authorities the basis of an arguable case. If legal aid is not available, free legal advice and representation is available through other outlets.

We would mention specifically, (details can be obtained from the Tribunal staff), the Free Representation Unit; Law Centres of which there are quite a number in Greater London and Citizen Advice Bureaus. Although Ms Riniker has done a great deal of work on the case, we are of the view that it is a case with complications that would benefit from the skilled focus of professional advice and presentation.