United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the 1st Respondents and For the 2nd Respondents	MR BOWERS (of Counsel) Messrs Allen & Overy Solicitors One New Change London EC4M 9QQ


 


MR JUSTICE LINDSAY: We have before us a full hearing in the matter of Mr J. Martin and 10 others against Ferranti International Plc and GEC Marconi Ltd. That, at any rate, was the way in which the matter was described before the Industrial Tribunal when a decision was arrived at that was promulgated on 7 August 1996, after a hearing on 28 and 29 February 1996. But, amongst the Applicants described there as "J. Martin and 10 others", was Mr Alastair John Nixon and Mr Nixon is, "in person", before us today and is the only Appellant now taking the case further.

There is, unhappily, a procedural uncomfortableness about the way in which the matter has so far come to us. There was, in the ordinary course, a preliminary hearing that came before the Employment Appeals Tribunal on 20 June 1997. On that occasion Mr Nixon, it seems, had prepared a nine-page document headed:

"PRELIMINARY HEARING 20th June 1997

Skeleton Arguments for Appeal - Prepared 1st June 1997"

And amongst the subjects it touches on is the need for the Chairman's Notes of the hearing in February 1996. However, it transpires that in the helpful way that often happens Mr Nixon was on 20 June represented by Counsel, who had come to his aid under the ELAAS scheme (Employment Law Appeal Advice Scheme).

The directions that emerged on 20 June were simply that the appeal be allowed to proceed to a full hearing of the Employment Appeal Tribunal and there is no reference in the decision to indicate that the ELAAS Counsel I have mentioned made an application for Chairman's Notes on 20 June, still less that the application was made and failed. There was no provision for Chairman's Notes.

That, as it seemed, troubled Mr Nixon because, of course, once that hearing had finished he was back "in person" without further legal assistance. The Employment Law Appeal Advice Scheme would not have provided continuous representation for him and on 17 November he made a request in writing to the EAT in connection with the provision of Chairman's Notes and returned to the subject orally on 1 December. On 3 December he was told that he could raise the point as a preliminary issue before us today.

This is a very inconvenient way of dealing with matters because, of course, if there are to be Chairman's Notes, it will require the adjournment of the full hearing although the Respondent employer has come here ready to argue its case.

Against that, it is Mr Nixon's case that the Chairman's notes are necessary for parts of his argument in connection, in particular, with showing that the transfer might have been connected with a management buy-out rather than with a transfer to GEC Marconi, which latter seems to have been the principal subject which was ventilated before the Industrial Tribunal.

With some reluctance we accede to Mr Nixon's request for Chairman's Notes. We are very conscious that it entails a waste of time and money, so far as the Respondent is likely to view it, but against that, it is Mr Nixon's case that he had made a request long before which has not been clearly dealt with before. There could have been a misunderstanding on 20 June and it is quite plain that Mr Nixon, in the meantime, reverted to the subject as long ago as 17 November.

We are very conscious of the force of the arguments which Mr Bowers has advanced to us against there being Chairman's Notes but to some extent one has to have some regard to the broader justice of the case. Here we can see that Mr Nixon might (we do not say justifiably) feel aggrieved if he is constrained in his argument by the absence of Chairman's Notes. It is a burden for Chairmen but this is a subject which has been raised earlier, as early as June and, on balance, we accede to his request. It will, of course, mean some form of adjournment.

One advantage the presence of the Chairman's Notes should encourage is that it may encourage the availability to Mr Nixon of professional legal assistance. It could be that the case will come to be argued by way of an examination of the differences, if any, between Ibex Trading Co Ltd v Walton [1994] IRLR 564 and Michael Peters Ltd v (1) Farnfield and (2) Michael Peters Group plc[1995] IRLR 190. We do not say that that is the only way the case can be argued by any means and it could be that other ways in which the case will be argued or could be argued would not make the Chairman's Notes of relevance. But, if there is to be an examination of which of those cases is to be preferred it will greatly assist both Mr Nixon and the Tribunal if, in the meantime, he is able to obtain legal advice and it could be that the provision of the Chairman's Notes will assist in that regard.

However, at this stage, we deal only with the question of the Chairman's Notes and, with some reluctance, because we do see that it requires an adjournment and necessarily involves further expense, we accede to that application.