United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR I TAYLOR (Representative) Paul Turner Group Solicitor Chequepoint (UK) Ltd 85 Cromwell Road London SW7 5BW
For the Respondent	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a decision of an Industrial Tribunal Chairman not to divide a complaint of unfair dismissal into two parts.

The complainant had worked for some eight years for a company called Chequepoint (UK) Ltd. We are not concerned with the circumstances in which his employment came to an end, but suffice it to say, it came to an end in a way which Mr Jamal-Ahmad, the complainant, believes to have been unfair. Therefore, it appeared to be a straightforward case of unfair dismissal having regard to the Originating Application and the respondents' answer.

In due course Chequepoint (UK) Ltd decided that a legality point should be taken, on the basis that Mr Jamal-Ahmad's passport contained within it a restriction that he was not to work in the United Kingdom without a permit. They say that the question arises as to whether he was working here for Chequepoint (UK) Ltd illegally or not. Chequepoint (UK) Ltd say that he must have been working illegally and are seeking to find evidence to substantiate that claim, but they recognise there is a limit to what an employer can do in these circumstances to obtain the necessary concrete evidence. It was their desire, therefore, that the Industrial Tribunal should split the case into two and try first the issue as to whether they had jurisdiction to consider a complaint of unfair dismissal on the basis that Mr Jamal-Ahmad, in their submission, was working here illegally.

That application came before an Industrial Tribunal Chairman and his ruling was set out in a well-reasoned decision dated 12th June 1997 which was the date when that decision was sent to the parties. He started off in paragraph 1 by identifying what the issue was, he says:

"1 I am asked by the representative for the Respondents to give reasons for my decision that the question of the illegality of the Applicant's contract should not be tried at a Preliminary Hearing but should be dealt with at the start of the full merits hearing in this case if the Respondents intended to continue to advance that proposition. ..."

He then sets out the background facts, and in paragraph 9 sets out the basis on which he has arrived at his decision. He says this:

"9 My reasons for exercising my discretion, having set out at some length the facts of the matter, are that it seems to me that the matter can be more quickly and expeditiously dealt with at one hearing than two. The alternative is that some of the facts of the case will be recited first at a Preliminary Hearing and the matter should then be further adjourned if the question of illegality is determined in favour of the Applicant for a further hearing on the merits of the claim. I do not propose in this Order to decide whether there is a presumption that a contract is legal or where the burden of proof actually lies, but simply to say that it seems to me that if the Respondents intend to assert that the contract is illegal, then it is for them to prove by positive evidence that this is so. ... It seems to me therefore that the matter can be shortly resolved and that it is not a matter where the Tribunal may have to go into evidence at length in order to consider whether the Applicant is barred by the illegality of his contract from presenting a claim to the Industrial Tribunals. A further matter which weighs with me are the judgments of the Court of Appeal in Hewe Castle Catering Ltd v Ahmed and another [1992] ICR 626, where it seems that the Court of Appeal are saying that the question is really one of whether public policy requires that a contract should not be enforced in the courts. Although of course I cannot decide this point or direct how the case should be conducted, it does seem to me that there might be strong arguments here for saying that the length of the Applicant's employment is such that public policy does require that he should not be deprived of the statutory rights which he has acquired under his contract of employment, merely because at some time in the past he might have secured employment illegally. I have therefore in exercising my discretion had regard to the fact that, first, the Preliminary Hearing is not likely to take up more than two hours of the Tribunal's time, that there is a strong probability that the defence will not succeed, either because the Applicant will establish to the Tribunal's satisfaction that he did secure authority from the Department of Employment before entering into the Respondents' employment or that in the circumstances of this case public policy does not require the Tribunal to say that the contract is illegal. Consequently, the interests of justice and the necessity for expeditiously dealing with these cases make it preferable that all matters should be considered at one hearing. ..."

On behalf of Chequepoint (UK) Ltd, Mr Taylor has argued, as he has to, that this decision was wrong in law and perverse. He says that having concluded that the preliminary issue would take a relatively short time to be disposed of, it is unfair on the respondents that they should have to marshal their evidence as though there was going to be full hearing if in fact they were going to be able to knock out the claim after a short two hour preliminary canter on the illegality point.

We see the force of that, but equally we see the force of the alternative point which is what is referred to by the Chairman, which is if the preliminary point was decided against the employers, then it would be unfair on Mr Jamal-Ahmad to have the substance of his complaint postponed for a further hearing. It seems to us that the interests of justice are evenly balanced in the way in which the point can be put. It must have been within the Chairman's knowledge that the issue as to illegality will involve quite a lot of evidence which may ultimately have to come out in any event at the full hearing.

It seems to us in these circumstances that the decision as to whether to hold one hearing or two was very much a matter for the discretion of an experienced Chairman, and we see no reason to believe that he has not approached the matter conscientiously. Indeed, the lengthy reasons that he has given fully support the proposition that this Chairman has applied his mind with care to the interests of justice and the relative injustice to the parties by taking one course or another.

Accordingly, we are simply not persuaded at all that it is even arguable that the learned Chairman has misdirected himself in law or has arrived at a decision which was perverse. This was his discretion. He has exercised it. We will not interfere with the exercise of that discretion.