United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MR D MATTHEWS (of Counsel) Messrs Le Brasseur J Tickle Solicitors Drury House 34-43 Russell Street London WC2B 5HA


 


JUDGE D M LEVY QC: Mrs Esther Mensah is a bank midwife. On 22 April 1996 she made an application to an Industrial Tribunal making a complaint that her employer was in breach of the Employment Protection (Consolidation) Act 1978 as amended; in breach of the Health and Safety Act 1976; in breach of the Race Relations Act 1976 and of unfair dismissal.

Box 4 of the application form said that the dates of her employment were 8 November 1994 to 29 January 1996. In Paragraph 12 of the form, Mrs Mensah stated that she was granted a service contract in early November 1994 as a "bank midwife" and started work on 8 November 1994. It then said that she was not given a written contract and sustained an injury in 1995. The complaint is particularised in six further manuscript pages.

The Notice of Appearance of the Employer, West Middlesex University NHS Trust ("the Employer") is dated 18 June 1996. In it the Employer alleged that:

"Mrs Mensah worked on a 'bank' basis as a casual midwife at this Trust from November 1994. The nature of her contract was that she was called in to work as and when required, with no obligation to accept work, or for the Trust to provide work. This arrangement is common within the NHS where nurses and midwives work casually to cover sickness and annual leave. As such, Mrs Mensah was not an employee of the Trust and was not therefore dismissed with notice."

The Tribunal was asked to convene a pre-hearing assessment to dismiss the claim of unfair dismissal for the reason that the Applicant was not an employee of the Trust. The Tribunal did have such a hearing on 23 July 1997. Mr Matthews, who appears for the Employer today, appeared then. Mrs Mensah represented herself before the Industrial Tribunal, as she did before us today. The unanimous decision of the Tribunal originally promulgated on 18 August 1997 was that it had no jurisdiction to consider the unfair complaint dismissal. The claim of an itemised payslip for particulars of employment and for pay in lieu of notice were also dismissed. The Tribunal gave Extended Reasons for their decision on 8 September 1997, correcting clerical errors contained in the decision circulated earlier.

On 26 August 1997 Mrs Mensah made an application for a review of the Tribunal's decision which was refused on 18 September 1997.

On 19 September 1997 Mrs Mensah submitted a notice of an appeal to this Tribunal. In the course of that Notice of Appeal she complained inter alia, of bias of the Chairman at the hearing before the Industrial Tribunal. On 9 October she swore an affidavit to set out her complaints about the Chairman's conduct. The Chairman commented on that affidavit on 28 November 1997.

A directions hearing, convened by this Tribunal, took place on 27 February 1998. Judge Clark was the Chairman of the panel. Submissions were heard from Mrs Mensah in person and Mr Leslie on behalf of the Respondents. The Employer's application for notes of evidence was refused as was the Appellant's application for notes taken of the Respondent at the Industrial Tribunal were refused.

In giving judgment Judge Peter Clark made reference to the decision of the Court of Appeal in Clark v Oxfordshire Health Authority. On appeal, the decision of the Employment Appeal Tribunal in favour of a bank midwife who claimed "employment" by a National Health Trust was similar to that of Mrs Mensah was reversed.

In the course of the hearing before us, we were provided with a transcript of the judgment of the Court of Appeal. On 16 March 1998, sitting alone, Judge Peter Clark refused Mrs Mensah's application for a Review of this Tribunal's decision of 27 February.

At the hearing before us Mrs Mensah addressed us first on the question of bias. We have carefully considered all that she said both in her affidavit and before us today about the manner in which the Chairman conducted himself at the hearing and about the manner in which the hearing below was conducted. In the course of giving the decision of the Industrial Tribunal the Chairman said this:

"It was very difficult for us to keep the Applicant on the tracks as it were because, although she is an intelligent person, at times she was either unwilling or unable to make the distinction between putting her case herself and giving evidence and challenging the evidence of the Respondent's witnesses."

We have listened patiently to Mrs Mensah today. She is an intelligent woman, but having seen her for ourselves we find that the comments made by the Chairman are very apt. This appeal basically turns on a point of law. Mrs Mensah throughout the morning has addressed us on diverse issues, many of them political, despite our many attempts to restrict her from so doing.

Mrs Mensah also complained that one of the side members of the Tribunal had not paid full attention throughout. That complaint was in no way particularised. The Chairman says it did not happen and we are quite sure that that suggestion was misplaced. It is difficult for a litigant in person to appreciate that, in conducting a hearing, a Chairman has to be fair to both sides and to ensure that proceedings are properly conducted. We are satisfied that the Chairman did not behave in any way improperly and that no bias was exercised for or against either party during the hearing. The appeal on the grounds of gross procedural irregularity in the Industrial Tribunal fails.

On the the appeal as to whether Mrs Mensah was an employee of the Employer it is clear to us that in the light of the appeal decision in Clark v Oxfordshire Health Authority, delivered on 18 December 1997, the judgment of the Industrial Tribunal cannot be impeached.

In paragraph 3 of the Extended Reasons, reference is made to the authorities on which the Industrial Tribunal were addressed. The first of those was Clark v Oxfordshire Health Authority, then a decision of the Employment Appeal Tribunal, where a majority found in favour of the employee. We understand from Mr Mason, before the Industrial Tribunal, that he submitted the EAT decision was wrong inter alia because decisions of the Court of Appeal which were contrary to the majority finding were not cited to the EAT.

Having referred to authorities cited to the Tribunal, paragraph 3 of the Extended Reasons contains this passage:

"Naturally each case must be decided on its own facts. However, looking at the history of the relationship between the Applicant and the Respondents and the gaps between the various 'engagements' (to use a neutral term) as set out in pp 32 and 33 based on pp 21-31 which are the actual records concerned and even based on the document put in by the Applicant at the hearing which records, more or less, the same pattern of engagements as the documents put in by the Respondents referred to, we have come to the conclusion that there was no mutuality of obligations in this case. The Respondents were not obliged to offer engagements for shifts or days or weeks and the Applicant was not obliged to accept such engagements if and when they were offered. The only 'mutuality' that applies is that the agreement was that if there was work available and if it was offered and if the Applicant accepted it, then that would be a single engagement to be followed by another single engagement as and when occasions arose. That is supported by Mrs E D Curtis understanding of the time she was a 'bank midwife'. In our view, on the evidence and the documents and, having heard the arguments and considered the case law, we have come to the conclusion that the Applicant was not an employee for the purposes of bringing a claim for unfair dismissal under the Employment Rights Act 1996. Even if the Applicant was an employee, she should not have the qualifying period of two years to bring an unfair dismissal claim as the dates given relate to a period from November 1994 to January 1996. It is common ground that she did not work during the last week of January 1996 although she did attend a meeting during that week."

Paragraph 4 of the Extended Reasons makes reference to the facts the Tribunal had to consider to determine whether Mrs Mensah was an employee. Essentially the facts were the same as those considered by the Court of Appeal in Clark v Oxfordshire Health Authorities. In giving the leading judgment in the Court of Appeal, Sir Christopher Slade referred to the principles governing appeals from Industrial Tribunals to the Employment Appeal Tribunal. This Tribunal is not entitled to interfere with the judgment of an Industrial Tribunal, unless there is a point of law which was wrongly decided there. This Tribunal cannot substitute its judgment for that reached by an Industrial Tribunal if the judgment is one which the Industrial Tribunal could properly reach on the evidence it had heard.

In Clark the Industrial Tribunal had held that the respondent authority was, at no relevant time, under any obligation to offer the Applicant, like Mrs Mensah here, a bank nurse, work, nor was she under any obligation to accept it. As to this finding, Sir Christopher Slade said:

"I would for my part accept that the mutual obligations required to find a global contract of employment need not necessarily in every case consist of obligations to provide and perform work. To take one obvious example, an obligation by one party to accept and do work if offered, an obligation on the other party to pay a retainer during such period as work was not offered would, in my opinion, be likely to suffice. In my judgment however, as I have already indicated the authorities require us to hold that some mutuality of obligation is required to find a global contract of employment. In the present case I can find no such mutuality subsisting during the periods when the Applicant was occupied in a single engagement. Any obligation of confidentiality binding her such periods would have stemmed merely from previous single engagements. Apart from this no continual obligations would have fallen on the authority during such periods."

The mutuality test, as thus expressed, was very similar to the test which the Industrial Tribunal set out to apply to the facts as they found them here. They were entitled to find the facts found and to come to the decision they did. In those circumstances the judgment appealed against cannot be faulted.

We have properly been referred by Mr Mason to a more recent decision of a Court of Appeal, that of Carmichael & Another v National Power Plc (Reported in The Times on 2 April 1998; the headline reads: "Casual workers had employment contract"). Within the report, there is some suggestion in the judgment of the majority of the Court of Appeal that there was a confusion in the lower court about the factual position . However, having looked carefully at the facts set out in the Times Report, we are satisfied that there may have been mutual obligations between the "contracting" parties which, on the findings of the Industrial Tribunal here and of the Court of Appeal in Clark, were not to be found in the cases both of Mrs Clark and Mrs Mensah. Further, from the report which we have seen it is also not clear to us that Clark was cited to the Court of Appeal in Carmichael. In our judgment, on the material before us, we are obliged to apply the decision in Clark to this appeal.

Mrs Mensah has submitted that there are points of European law arising on this appeal. We have been unable to identify any such points in her written or oral submissions. Essentially the issues before us were two. First, did Mrs Mensah have a fair hearing in the Industrial Tribunal. We are satisfied that she did. Secondly, whether the decision in the Industrial Tribunal is in any way wrong. We are satisfied it was not.

In these circumstances we dismiss the appeal.