United Kingdom Employment Appeal Tribunal

APPEARANCES

 

FOR THE APPELLANT	MR D CURWEN (OF COUNSEL) INSTRUCTED BY: MS S BRITON DAS LEGAL EXPENSES INSURANCE CO LTD DAS HOUSE QUAY SIDE TEMPLE BACK BRISTOL BS1 6NH


 


JUDGE CLARK:

1. This case raises issues as to the pre hearing review (PHR) procedure under rule 7 of the Employment Tribunal Rules of procedure 1993.
2. The background is that on the 2^nd October 1998 the Applicant, Mrs Maurice, presented a complaint of unfair dismissal against the Respondent, Betterware UK Ltd, by whom she claimed she had been employed from June 1992 until 7^th July 1998.
3. By their Notice of Appearance dated 21^st October, the Respondent contended, first, that she was not an employee for the purposes of Section 230 (1) of the Employment Rights Act 1996. At the Respondent's request a PHR was held before a Chairman sitting at Cardiff on 4^th December 1998. Having considered oral submissions by Counsel for the Applicant and written representations on behalf of the Respondent, that Chairman concluded that it could not be said that on the jurisdictional question as to whether the Applicant was an employee of the Respondent the Applicant's case had no reasonable prospect of success for the purpose of rule 7(4) and accordingly she was not ordered to pay a deposit under that rule. The case was listed for a 4 day merits hearing. That ruling which we shall cal "the first PHR decision" (subject to observations on whether or not it was a decision within regulation 2(2) of the 1993 regulation, to which we shall return) was contained in a letter from the Tribunal to the parties dated 10^th December 1998.
4. Subsequently, on 11 March 1999, the Court of Appeal upheld the Respondent's appeal in the case of Express & Echo Publications Ltd v Tanton (1999) IRLR 367. As a result of reading that judgement the Respondent's solicitors wrote to the Employment Tribunal on 14^th May requesting a further PHR.
5. The Tribunal agreed to hold a further PHR. The matter came back before a different Chairman, Dr Rachel Davies, on 4^th August 1999. This time both parties were represented.
6. Dr Davies reached a different conclusion from the first Chairman. She held that the Applicant's claim had no reasonable prospect of success. She rejected an argument that finality required that no second PHR should take place. She ordered the Applicant to pay a deposit of £150. That ruling, which for convenience we shall call the 2^nd PHR decision, was promulgated with reasons on what appears to be 3^rd August 1999. Plainly that date, which precedes the hearing, cannot be correct.
7. Rule 7(7) provides that unless the deposit is paid within 21 days of the date on which the order is sent out to the party ordered to pay the deposit the Tribunal shall strike out the application.
8. No strike out order was made in this case. By fax dated 6^th September the Applicant's advisers, DAS, wrote to the Tribunal indicating an intention to appeal to the EAT against the 2^nd review decision and enquired whether it was necessary to pay the deposit before the Appeal was determined. By letter dated 10^th September the Tribunal ordered that payment of deposit be stayed pending appeal. (The Stay Order).
9. On 13^th September the Respondent's solicitors wrote to the Tribunal contending that the Chairman had no power to make the stay order relying on rule 7(7)(b). On 16^th September the Tribunal indicated that any decision on the Respondent's submission be deferred until after the appeal.
10. On 13^th September the Applicant lodged Notice of Appeal to the EAT. The Respondent has indicated an intention to cross appeal against the stay order.
11. This is a preliminary hearing held to consider whether the appeal raises any reasonably arguable point or point of law. It seems to us that it does, in particular:-

(1) A question arises as to whether a PHR order is a decision within regulation 2(2). It is interesting to note that Harvey on Industrial Relations and Employment Law proffers the opinion both that is (notes R558) and is not (notes T598) a decision and thus reviewable under rule 11. Mr Curwen submits that there must be a misprint and that in truth this is not a decision for the purpose of the rules. We think that that point ought to be resolved and this case is as good as any in which to do it. The answer to that question is also relevant to the principal point take by the Applicant that either a cause of action or issue estoppel arose between the parties following the first review decision, which meant that the Tribunal had no jurisdiction to hold a second PHR.

(2) The basis on which the second PHR was apparently held and decided was that the Court of Appeal had decided Tanton in the way in which it did. It is arguable that Tanton is itself inconsistent with the approach of the House of Lords in their later decision in Carmichael v National Power, reported in the Times 23 November 1999.

12. As to the cross-appeal it will be necessary to consider the inter-relationship between the time limits specific to the PHR procedure under rule 7(7) and the Employment Tribunal's general power to extend time under rule 15 whether or not the time for doing the relevant act has expired. It may also be of interest to consider the conflicting EAT decisions in Immigration Advisory Service v Oommen (1997) ICR 683 and Kuttapan v London Borough of Croydon (1999) IRLR 349 on the one hand and the decision of a Tribunal presided over by Mr Justice Morrison in Hammersmith and Fulham Council v Ladejoh (1999) ICR 673 on the other. Whether or not that point strictly arises for consideration in this appeal bearing in mind the time frame, is a matter for the parties to consider.
13. In these circumstances the case will go forward to a full appeal hearing with a time estimate of three hours; category B. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged at the same time with this Tribunal.