United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR BARKLEM (OF COUNSEL) INSTRUCTED BY: ELAAS


 


MR COMMISSIONER HOWELL QC:-

1. In this appeal which comes before us on a preliminary hearing, today Mr Amir Moughadam, seeks to pursue an appeal against the decision of the Chairman of the Bristol Employment Tribunal given on 7^th October 1999, declining to review an earlier decision of the same tribunal set in out in extended reasons issued to the parties on 29^th December 1998, following hearings which took place on 15^th and 16^th December 1998.
2. Those extended reasons for the original decision are set out at pages 6 – 13 of the appeal bundle, and the Chairman's extended reasons for declining to carry out a review of that earlier decision, on the ground that it had to reason that the application had no reasonable prospect of success, are set out on pages 3 – 5 of the bundle.
3. The original decision in December 1998 had determined, on an application by the Appellant under section 11 of the Employment Rights Act 1996, that he had been employed by the Respondent Dr Clifford Walker as a locum dentist under a contract of employment during the period 8^th January 1996 to 16^th April 1997; and declared what the material terms of that employment were, in particular as to remuneration.
4. It was not in issue before the Tribunal, as recorded by them in their extended reasons in paragraph 11 on page 9 of the appeal bundle, that he had left that employment on or about 16^th April 1997. His original application, on page 17 appears to refer to that as the termination date of his employment. At some stage it may have been given as 18^th April 1997, but the exact date does not matter for the present purpose.
5. The issue before the Employment Tribunal (and the only issue with which they had the jurisdiction to deal on this application under section 11) was what particulars ought to have been included or referred to in a statement given to him so as to comply with the requirements of section 1 of the same act, which obliges an employer to give written particulars of employment, itemising certain matters, to every employee.
6. By the appellant's Notice of Appeal dated 8^th November 1999 at page 1 of our bundle, he seeks to pursue an appeal against the chairman's refusal to review the original declaration as to the terms of his employment. The ground on which that is sought is that the original declaration had included a reference to the date of 16^th April 1997. It is sought to establish that that was an error of law, in that the Tribunal had thereby purported to make a "declaration" that on that date 16^th April 1997, there had been an actual termination of the applicant's employment; there being as is stated in the Notice of Appeal no jurisdiction to make such a declaration under section 11.
7. The terms of (original) decision which are criticised are set out on page 6, where the decision itself is stated in the initial paragraph, expressed as a declaration in the following terms:-

"(1) It is declared that the applicant was employed by the respondent under a contract of employment from 8 January 1996 until 16 April 1997".

8. In the context in which the application under section 11 came before the Tribunal, we do not consider it is right to read the decision they gave as set out in pages 6 - 13, or anything said in it, as having had any effect to decide one way or the other whether there was a termination of the applicant's employment on 16^th April 1997 or on any other date. Termination was not an issue within the proper scope of the application that was before the Tribunal under section 11, nor (as is apparent from the record) was it an issue in fact raised or argued before the Tribunal by either of the parties. All that was before the Tribunal was an application for particulars of the terms of the applicant's employment under section 11. I have already referred to that section and it is now necessary to refer to section 1 to see the particulars which are required to be included in the terms of employment, so as to see the issues which came before the Tribunal under the application under section 11.
9. Under section 1, an employer is required to give every employee a written statement of the particulars of his employment when that employment begins. The statement is required to contain particulars of various matters under section 1(3), for example, the names of the employer and the employee, the date when the employment began, and so forth. Under section 1(4), the statement is also to contain particulars as at a specified date not more than 7 days before the statement is given of various other important matters such as the scale of remuneration or the method of calculating remuneration, terms as to payment, terms and conditions as to hours of work and holidays, and other matters which one would expect to find in any proper statement of particulars of employment or contract of employment.
10. There is no provision as to the duration of the contract, except what is to be found in section 1(4)(g) which prescribes that where the employment is not intended to be permanent, the particulars must include the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end. There was no dispute before the Tribunal and no evidence to indicate that the contract in this case was for a fixed term, and we accept the argument of Mr Barklem (who appeared on behalf of the appellant before us on this appeal and for whose assistance under the ELAAS system, we are very grateful) that the paragraph, that I have just read was of no relevance, because there was no evidence that this was a contract for a fixed term.
11. As the Tribunal recognised, it was a necessary pre-condition of considering the application to determine what particulars should have been included in a statement, that the Tribunal had to be satisfied that as regards the period dealt with in the evidence before them, the applicant was indeed an employee of the Respondent as he claimed. The Tribunal in their Extended Reasons dealt at length with this issue, namely, the Appellant's status: whether he was an employee or not. They gave their decision in his favour on that issue. As regards the period for their consideration they recorded only in paragraph 11 of their decision on page 9:-

"Initially the applicant was taken on on a short term basis but he proved to be satisfactory and the arrangement continued until 16^th April 1997 when the applicant left in circumstances which we do not need to deal with".

12. They neither made nor purported to make any determination about whether his contract of Employment had been (rightly or wrongly) terminated on that date or any other; but at once went on to consider what the terms of his employment for the relevant period as they understood it were as regards remuneration and otherwise. They set out in particular in paragraph 19 of their decision on page 13 of the bundle, that they found the terms of the employment as to remuneration to be that he was entitled to 50% of the fees he was responsible for earning, less 50% of laboratory fees and other expenses.
13. In the context of the determination they thus gave concerned with the particulars of the applicant's employment we consider it would be wrong to read the opening declaration in paragraph (1) on page 6 as purporting to decide any issue at all in relation to termination. No such issue was, in fact, before the Tribunal. Indeed, we doubt if it could not have been validly before them on the application as made under section 11 which related only to determining what particulars should have been included in the statement, and gave them no jurisdiction to decide a question of termination that was never raised.
14. In his Extended Reasons for declining a review, the Chairman of this Tribunal says as much. Paragraphs 10 and 11 of his reasons on pages 4 to 5 are in the following terms:-

"10. In his application for a Review the applicant appears to be alleging that his employment did not end on 16^th April 1997, as stated in his Originating Application, or indeed on 18^th April 1997, the date of his accident and the last date he actually worked, or even on 31 May 1997 as accepted by the [NHS, against whom the applicant has a separate claim on foot for sick pay under the terms applicable to employed dentists] but, as I understand it, that it has never come to an end because he refused to accept any repudiation of his employment contract and he is at present simply "off sick". This is not an issue which the tribunal can resolve as it no relevance to any claim which the applicant can make before the tribunal. The declaration stating the effective date of termination, was, in fact, simply given as part of the narrative which the tribunal understood to be agreed and to clarify the period in respect of which the Particulars of Employment had effect.

11. I therefore consider that it would not be right to allow a review to enable the applicant to argue a point which is only relevant to his claim for Injury Benefit and has no relevance to any issue with the jurisdiction of the Employment Tribunals. The Employment Tribunal is not the correct venue for deciding whether the applicant is entitled to injury benefit under the 1995 [NHS] Regulations".

15. That statement by the Chairman, as recorded on those two paragraphs, appears to us to be a clear and accurate statement of both the facts and law bearing on the Notice of Appeal brought in this case, and we find nothing wrong with it as a matter of law. It follows in our judgment that the Appellant has failed to show any reasonably arguable ground in law for disputing the Chairman's decision given on 7^th October 1999 as his Notice of Appeal on page 1 seeks. Accordingly, we do not direct that there should be a full hearing of that appeal before the Employment Appeal Tribunal and we now unanimously dismiss the Appeal.