United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P OLDHAM (ELAAS)


 


HIS HONOUR JUDGE J. ALTMAN: This is an appeal by the Applicant from the decision of the Industrial Tribunal sitting at London (North) on 30 June 1998, when they decided that the Applicant was not an employee of the Respondents and that the claims before the Tribunal failed in consequence. The matter comes before us by way of preliminary hearing to determine whether there is an arguable point of law such as to justify this appeal being heard in full by an Employment Appeal Tribunal.

The determination of the question as to whether or not the Applicant was an employee or in the context of this particular case, self employed, depended upon an examination of the evidence, such as it was, of the various facets of the relationship between the parties during the period of their contractual association, because it was certainly contractual.

In paragraph 4 of their decision, the Tribunal set out in five sub-paragraphs the essential findings of fact they made in relation to the evidence that was before them. The Applicant appeared on her own, was not represented before the Tribunal and was left with the impression that although she produced documents to the Tribunal, they were subjected to a variety of treatments. Some were not looked at, some were looked at cursorily but not sufficiently for them to be absorbed and some, although they were referred to by the Applicant, were not looked at at all.

This is an unusual and very serious allegation to make about the conduct of the Tribunal proceedings before the Industrial Tribunal and we have been concerned, properly it seems to us at this stage, to determine whether there was any substance in the material produced. Very frequently, an experienced Chairman can look very rapidly at a document and ascertain the significance in a way which may leave the lay person thinking that he has not given the document sufficient attention. This is a misleading impression on many occasions.

We have been referred to two documents by way of example, which fall into the category of being examined cursorily, but not looked at in sufficient detail for a Chairman to absorb the implications. One is a letter vouching for the fact that the Applicant was employed by the Respondent, which, if one is looking at words through a magnifying glass (which this exercise involves very often), is of course ambiguous, and another document referring to someone in the position of the Applicant as being "required" to work and be part of a group described as "Tour Managers and other employees". Without commenting on the weight of those documents, it seems to us that these allegations do merit being canvassed fully before the Employment Appeal Tribunal with the contribution, that only a full hearing can realise, from the other party, the Respondents.

The way in which this matter should proceed to full hearing has concerned us a little. We are enormously indebted to Mr Oldham, who has represented the Applicant under the Employment Law Appeal Advisory Service, and the Applicant's case has clearly benefited from such assistance. The Applicant herself has presented the Tribunal with some detailed and relevant paperwork and nothing I say is intended to decry that. But at this stage, the parties would be assisted if the Appellant were to have representation and from our point of view, and I am sure from the Applicant's point of view herself, if there could be continuity of representation then that would also be desirable and we would therefore be grateful if within the limits of steps that can properly be taken, Mr Oldham will set in motion such wheels as can be set in motion to give that sort of proper assistance. Having said that, there are a number of details as follows:

First of all, is it necessary for an affidavit to be sworn by the Applicant as to what she says happened before the Tribunal? We would hope that that is not necessary and it is certainly not apparently necessary at this stage. The second matter is whether the notice of appeal in current form reflect the substantial grounds of appeal and omits those that are not of substance, in a form which is helpful to those that have to argue it. Of course there is the question of skeleton arguments. We will not make any order at this stage in relation to those matters until the Applicant's representatives have had an opportunity of marshalling all the factors in the case and been able to investigate fully the history of it. But we will make an order that within 21 days of the sending out of the judgment from this Employment Appeal Tribunal, the parties should prepare a joint statement of the directions they would seek in order to deal with this matter, or in the absence of agreement, individually set out in a letter form to the Employment Appeal Tribunal, the directions they would seek in order to deal with the matters which remain.

We apologise that we have not been of more assistance in specifying directions at this stage, but it seems to us that the state of the appeal really leaves us with no alternative. Accordingly, this matter will be listed for up to a day at the most in Category C.