United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MR A LESLIE (Solicitor) Messrs Le Brasseur J Tickle Solicitors Drury House 34-43 Russell Street London WC2B 5HA


 


JUDGE PETER CLARK: On 23 April 1996 the Appellant, Mrs Mensah, presented an Originating Application to an Industrial Tribunal complaining of unfair dismissal and unlawful racial discrimination. She alleged that she was employed by the Respondent Trust as a bank midwife from 8 November 1994 until 29 January 1996, on which date she alleged she was dismissed. It was her contention that she had been dismissed for asserting a statutory right contrary to Section 104 of the Employment Rights Act 1996, an inadmissible reason which, if made out, rendered the dismissal unfair without more, and without the necessity for completing two years continuous service under Section 108 of the Act; alternatively, ordinary unfair dismissal. In addition she complained of racial discrimination against the Trust and certain named employees.

The claim was resisted, and the point was taken on behalf of the Respondent that the Appellant was not an employee within the meaning of Section 230 of the 1996 Act.

In March 1997 the Industrial Tribunal directed that the question as to whether the Appellant was an employee and whether the Industrial Tribunal had jurisdiction to hear the unfair dismissal claim based on the Section 104 inadmissible reason should be taken at a preliminary hearing.

That hearing took place at the London (North) Industrial Tribunal on 23 July 1997 before a Tribunal chaired by Mr D.B. Williams. That Tribunal found, for reasons promulgated with a decision dated 18 August 1997, that she was not an employee and further had not asserted a statutory right so as to found a complaint under Section 104.

The Appellant made an unsuccessful application for a review of that decision, the application being dismissed by order of the Chairman dated 18 September. Against both the original and the review decisions the Appellant then appealed by a notice dated 19 September 1997.

The hearing of that appeal is listed for 10 March. There is before me today an application on behalf of the Respondents for the Chairman's notes of evidence taken at the hearing on 23 July, and a cross-application by the Appellant for the Respondent's notes of evidence taken by them at that hearing.

The test to be applied when considering a request for Chairman's notes is whether their production is necessary for the disposal of the appeal: Webb v Anglian Water Authority [1981] IRLR 494.

I return to the original Tribunal decision. The critical finding of fact by the Tribunal was that there was no mutuality of obligations between the Trust and the Appellant. That conclusion was reached on the basis that as a bank midwife the Trust was not obliged to offer the Appellant engagements for shifts or days or weeks of work and she was not obliged to take such engagements if and when they were offered. In the absence of such mutuality of obligations the Tribunal found that the Appellant was not an employee.

Among the authorities cited to the Industrial Tribunal was the majority decision of the EAT in Clark v Oxfordshire Health Authority (13 May 1996 Unreported). In that case Mrs Clark had worked for the authority, first on the "secretarial bank" and later on the nurse bank as a Staff Nurse. She was issued with a written Statement of Terms and Conditions of employment. The Tribunal found that she was not an employee. On appeal, by a majority, the EAT reversed that decision.

The case went to the Court of Appeal, and by a judgment delivered on 18 December 1997 that court reversed the EAT majority decision and restored that of the Industrial Tribunal. In giving the leading judgment of the Court Sir Christopher Slade, with whom Schiemann and Beldam LJJ agreed, held, following the earlier Court of Appeal decision in Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612, that some mutuality of obligation was required to found a contract of employment.

Having considered the issues raised in this appeal the Respondent has applied for the Chairman's notes of evidence on the grounds, first that this is an appeal based on perversity and, it is submitted, that the notes of evidence are necessarily required for advancing such a case: see Piggott Bros & Co Ltd v Jackson [1991] IRLR 309 and secondly Mr Leslie, who appears on behalf of the Respondent, is concerned that it is part of the Appellant's case in this appeal that the Industrial Tribunal did not pay proper attention to evidence given as to the assertion of a statutory right.

In these circumstances he applies for the Chairman's notes of Mrs Mensah's evidence only. It is his fear that, if the notes are not available, although this is an application normally made by the Appellant, then the full appeal hearing fixed for 20 March will not go smoothly.

The application is opposed by Mrs Mensah who submits that the notes will not be useful for the determination of the appeal. They are not necessary. Indeed, they will serve no benefit at the appeal hearing.

I have considered the rival submissions and the issues raised in this appeal and in my view Mrs Mensah is right. The notes are not necessary for the determination of this appeal and accordingly, I shall dismiss the Respondent's application.

As to the cross-application before me by Mrs Mensah for the Respondent's notes of evidence, that is a novel application but, in the light of my decision on the Respondent's application, that must necessarily also be dismissed.

I should add only this. In the light of the Court of Appeal's decision in the case of Clark, Mrs Mensah should carefully consider her position. If she persists in her appeal, notwithstanding that judgment, she puts herself at risk of an order for costs being made against her under Rule 34(1) of the EAT Rules, in the event that her appeal fails.