United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


MR JUSTICE CHARLES:

1. We have before us two appeals brought by Mr Conway. They come before us by way of preliminary hearing. The issue we have to consider is therefore whether the appeals raise points of law that are reasonably arguable. Both appeals arise out of proceedings started by Mr Conway in 1995.
2. Initially, a company called Centre Point Trading (UK) Ltd was the only Respondent. In box 1 of his IT1 Mr Conway lists seven claims and he expands upon those in box 12 of his IT1. The present appeals relate to two of those claims, namely the first and the fifth. They are a claim for unfair dismissal (the first claim) and a failure to provide a written statement of employment terms and conditions (the fifth claim). Initially, those claims were made against Centre Point Trading (UK) Ltd.
3. On 7 March 1996 the case came before an Employment Tribunal sitting at Stratford and was adjourned because it was not ready to proceed. The Chairman of that Tribunal was a Mr Cole and the Extended Reasons in respect of that decision were sent to the parties on 15 March 1996.
4. On 6 February 1997 Mr Cole, sitting alone as Chairman, added a number of Respondents. Those are listed at paragraph 17 of the Extended Reasons in respect of that decision which were sent to the parties on 11 March 1997. As we understand it, not all of those Respondents entered an Appearance. Paragraphs 8 to 13 of those Extended Reasons are in the following terms:

"8 Nevertheless, Mr Conway says he does not anticipate a difficulty because he is able to illustrate adequately that the 17 or so Respondents set out by him in his letter of 18 May 1996 are associated employers within the meaning of the Employment Rights Act 1996 at Section 231. I remind Mr Conway that Section prescribes as follows:

'231 – For the purposes of this Act, any two employers shall be treated as associated if -

(a) one is a company of which the other (directly or indirectly) has control; or

(b) both are companies of which a third person (directly or indirectly) has control; an associated employer shall be construed accordingly'.

9 Mr Grossman on behalf of Centre Point Trading (UK) Limited says that Mr Conway will be unable to show that the previous potential Respondents are associated within the meaning of Section 231. Mr Conway says that certain of the potential Respondents have been wound up and/or are in liquidation or have ceased to trade. He is unable to assist by the provision of addresses for service upon those potential Respondents in the event that I join them in these proceedings.

10 Mr Conway urges me to join those Respondents and to order this case to proceed for a preliminary hearing so that a Chairman may review, upon hearing the evidence, whether the assertion Mr Conway now makes assists him in proving a two year period of continuous employment.

11 I am persuade that notwithstanding the administrative inconvenience it is likely to cause, it is in the interests of justice that I should join as Respondents to these proceedings those individuals or limited liability companies or partnerships which I shall set out below.

12 Arising therefrom, I direct that each of the new Respondents shall be served with these proceedings and with a copy of the Tribunal decision dated 7 March 1996 and a copy of these interlocutory directions.

13 When the various Respondents have been served with these proceedings and Notices of Appearance, if so desired, have been filed, a preliminary hearing will be ordered. The purpose of that preliminary hearing will be to hear evidence only as to whether the Respondents now joined or any of them are associated employers within the meaning of Section 231 of the 1996 Act. In the event that, in due course, a Tribunal finds that Mr Conway has been employed only by one or by more than one of the Respondents but which Respondents are associated employers, the Tribunal will then occupy itself as to whether the duration of such single or joined periods of employment entitled Mr Conway to prosecute his claim of unfair dismissal or those of his other claims which rely on a period of not less than two years continuous employment ending with the effective date of termination."

5. In paragraph 16 of those Extended Reasons the Chairman urged Mr Conway to seek legal advice. It seems to us that, although Mr Conway has presented his case with clarity and politeness before us today, that that comment would still apply to him in presenting his appeals.
6. On 10 June 1997 the hearing relating to whether Mr Conway had two years' continuous employment came on for hearing by a Chairman sitting alone at Stratford. That Chairman was a Mr Richards. Section 4(6) &(6A) of the Employment Tribunals Act 1996, together with Rules 6 and 13(8) of the Employment Tribunals Rules empower a Chairman to sit alone on such an issue. The Extended Reasons in respect of that hearing on 10 June 1997 were sent to the parties on 2 July 1997. It is that decision, namely the decision contained in the Extended Reasons sent on 2 July 1997, that is the subject of one of the appeals before us. Paragraphs 1, 2 and 3 of those Extended Reasons are in the following terms:

"1 This is an application by Mr Conway which has been before the Tribunal on two previous occasions. He alleges that he has been unfairly dismissed, and seeks to pursue his claim against the 16 Respondents in this case. The matter has been listed for a preliminary hearing to determine the issue of whether Mr Conway has two years continuous employment, either with the First Respondent, Centre Point Trading (UK) Ltd, or with any of the other Respondents being associated employers within the meaning of Section 231 of the Employment Rights Act 1996.

Background

The parties agree that between 1990 and 1994, Mr Conway was employed by Countrytech Limited. That was a property company run by Mr A. Grossman. It was very successful in 1990 and had a value of something like £4.5 million. In about 1992 to 1993, the company ran into serious difficulties with the bank when interest rates were very high. As a result, the company found it was difficult to continue trading, and there have been substantial losses of some £1.8 million. The whole venture has been a disaster for Mr A. Grossman, not only financially, but also in terms of his credibility.

3 In February 1994, Mr Conway was taken onto the payroll of Centre Point Trading (UK) Ltd (Centre Point). The issue is whether at that stage there was continuity of employment as between Countrytech and Centre Point. Mr Conway argues that the companies are an associated employer within the meaning of Section 231 of the Act, and that the companies were in effect controlled by the same people, namely, the Grossman brothers. Mr Conway says he did the same work in the same place throughout, and that there was effectively no change in his employment status."

7. Paragraph 5 of those Extended Reasons contains a number of findings of fact, in particular sub-paragraph (vii) is a finding, in general terms, that:

"Where the evidence between Mr Conway and Mr M. Grossman and Mr A. Grossman differs, the Tribunal prefers the evidence of the Respondents who gave a clear and sensible account of the way in which Countrytech failed."

And, in sub-paragraph (ix):

"The Tribunal accepted the evidence of Mr M. Grossman and Mr A. Grossman, that Mr M. Grossman had no interest, either financial or factual, in Countrytech. …"

8. Mr Conway sought a review of that decision. That review was refused by a letter dated 4 September 1997. In seeking that review Mr Conway raised a number of the points that are also raised on this appeal, and which had been raised on this appeal before he sought that review, his Notice of Appeal being dated 12 August 1997. In particular, at paragraph 4 of that letter seeking a review, he says this:

"One also notices a lack of attention given to the other Respondents who appear to have been overlooked. It was previously ordered that a total of 17 Respondents be joined in the case, yet no attention was paid to the involvement of 15 of these and the fact that 7 of them failed to return their IT3 form. No mention was given as to whether the Applicant was employed by these other Respondents and for what period. The only Respondents that were considered were those that paid the Applicant's wages.

In refusing the review the Chairman said this, amongst other things:

"The arguments are similar in nature to those presented to the Tribunal and depend very much on the findings of fact on the evidence."

9. It seems to us that looked at generally that is a fair comment. Mr Conway appealed against the refusal to grant a review and that appeal was dismissed on a preliminary hearing which took place on 27 March 1998. The judgment in respect of that preliminary hearing was delivered on 13 May 1998 by the then President of this Tribunal, Mr Justice Morison. As to the fourth point raised on review, namely the consideration of the 16 or 17 additional Respondents, in his judgment Mr Justice Morison said this:

"The fourth point was this. Apparently the Industrial Tribunal did not pay any overt attention to the other respondents who, he alleges, appear to have been overlooked. But the reason why there is no express reference is apparent from the face of the Industrial Tribunal's decision, namely that the two candidates as employers, namely those who had been paying his wages, were the two named companies to whom I have referred."

10. Mr Justice Morison also goes through all the other points raised by way of review and finds that they do not give rise to a reasonably arguable point of law in the context of an appeal against the refusal to review and thus having regard to the extent of the powers to review of an Employment Tribunal. The President ended his judgment with the following statement:

"Accordingly, and not without some regret, we dismiss the appeal.

We express our regret only because this might have been a case where the Employment Appeal Tribunal would have been prepared to re-look at the question of continuity of employment had Mr Conway appealed against the substantive decision of the Industrial Tribunal set out in its written reasons dated 2nd July 1997, but no such appeal has been made to us."

11. Understandably, Mr Conway relies on that expression of sentiment by the then President because, as I have explained, an appeal had been brought against the substantive decision. It is apparent that when the President prepared his judgment, which as I have said was sent a short while after the hearing, he was not aware that there was a substantive appeal. Mr Conway tells us that that point was not a matter raised or discussed during the course of the preliminary hearing relating to the appeal against the review decision.
12. So far as we have been able to ascertain from the file the position so far as the substantive appeal is concerned is that as it initially contained a ground relating to the Seymour-Smith case it was not listed in the normal course before this Tribunal. Whether or not it was formally stayed we are unclear.
13. However, what we have seen is an exchange of correspondence starting with a letter dated 13 March 2000 from this Tribunal to Mr Conway, making reference to the Seymour-Smith decision of the House of Lords on 17 February and asking him whether he wished to proceed with the Seymour-Smith point in his appeal and, if he did not, whether he wanted to proceed with any of the other points on his appeal.
14. Mr Conway replied through the Tottenham Legal Advice Centre on 27 April 2000 accepting that the Seymour-Smith point was one which he could not proceed with and therefore he was withdrawing it, but making it clear that he did wish to proceed with his appeal on his other grounds. The response was that the appeal would be listed and it has been listed today for preliminary hearing.
15. That gives the background to the first appeal. Before returning to it, I shall also set out the background to the second appeal.
16. This appeal is against a decision of a Chairman of an Employment Tribunal, sitting alone on 26 July 1999. That decision was that:

"The Applicant's claim in respect of written terms and conditions of employment is struck out pursuant to Regulation 13(2)(d) and/or (e) of the Employment Tribunals (Constitution and Procedure) Regulations 1993, Schedule 1."

Those sub-rules provide that:

"13(2) A tribunal may -

(d) subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application or notice of appearance, or anything in such application or notice of appearance, on the grounds that it is scandalous, frivolous or vexatious.

(e) subject to paragraph (3), at any stage of the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or, as the case may be, respondent has been scandalous, frivolous or vexatious."

17. The nub of the decision reached by the Chairman was that the claim relating to written terms and conditions was by that stage frivolous. The Extended Reasons were sent to the parties on 2 August 1999. Mr Conway sought a review on 16 August 1999. The review decision was given by the same Chairman following a further hearing on 12 October 1999. The Extended Reasons for that decision were sent to the parties on 19 October 1999.
18. Mr Conway told us today that there is no appeal against that refusal to review. If there had been any such appeal we would have insisted that it too was brought on before us today. It seems to us that in respect of this decision to pursue two lines of appeal could be said to be an abuse of process. The Chairman on the review clearly went over matters again with some considerable care with Mr Conway, and it is apparent to us from her reasoning both as to the first decision and on review, that she took considerable trouble in respect of this appeal and to give Mr Conway every opportunity to put forward his arguments and position. A matter not brought to her attention, or it would seem not brought to her attention, was the existence of the appeal against the decision for unfair dismissal. At that stage that appeal was either technically, or in practice, stayed before this Tribunal.
19. I return therefore to the appeal in respect of continuity of employment. The grounds for that appeal are set out in paragraph 6 of the Notice of Appeal.
20. By letter dated 12 October 2000 a further point is raised which Mr Conway seeks to argue on the appeal. That argument is that the Tribunal was not properly constituted for the type of issues to be determined because they included the giving of evidence and findings of fact and therefore that the Chairman should not have sat alone.
21. Mr Conway accepts that that was not a point raised or put to the Tribunal Chairman below. Either personally, or with the assistance of others, he has done a fair amount of research over the years that these proceedings have been continuing and he drew to our attention cases relating to this point. They are gathered together in paragraphs of Harvey, in particular beginning at T32 through to T47. This case does not raise the argument referred to concerning the decisions of Sogbetun and Post Office v Howell in the later paragraphs, but does give rise to the points raised in Sutcliffe v Big C's Marine [1998] IRLR, Mobbs v Nuclear Electric plc [1996] IRLR 536 and a Scottish decision which was referred to us by Mr Conway, Fleming v Secretary of State for Trade and Industry.[1997] IRLR 682 Those cases concern the determination of a preliminary issue as to whether or not a Tribunal has jurisdiction, and thus rule 6 and rule 13(8) which, as I have said, enable or empower a Chairman to sit alone. The point made by Mr Justice Morison and by the Honourable Lord Johnson, the President of this Tribunal in Scotland, is that issues concerning whether or not an Applicant is employed when, as is usual, they involve issues of fact are cases which should be decided by a full Tribunal and not a Chairman sitting alone. That is not as such a "jurisdictional point", it is a "procedural regularity point" or a "fairness point" but one which it can be argued should be considered by a chairman of his own motion.
22. The issue to be decided in this case was not whether or not Mr Conway was employed but related to his continuity of employment. That raised a number of issues of disputed facts. At the heart of Mr Conway's case is the proposition that, after what he describes as the alleged change in employment, he sat at the same desk and did the same things, receiving instructions from the same people, being paid the same amount, save he was paid from a different bank account. He says that the source of his instructions was one of the Grossman brothers and that simply did not change.
23. As to the addition of the Respondents by Mr Cole earlier in the proceedings, two of them seem to me to be more important than the others, they were Mr A. Grossman and Countrytech, Countrytech being the company which paid him prior to the change, Mr A. Grossman being the controlling voice in Countrytech. The issue was whether or not the Grossman brothers effectively acted together to found the conclusion that the employers of Mr Conway were associated, pursuant to the statutory test set out in section 2(3)(1). We accept that it is reasonably arguable that that test is not confined to a shareholding test and it is open to Mr Conway to argue that a de facto control was sufficient.
24. The point Mr Conway raises as to whether or not the Chairman should have sat alone, seems to us to give rise to a reasonably arguable point of law namely whether or not the decision to sit alone, in the circumstances of this case, was correct in law having regard to the authorities we have referred to.
25. That gives rise to the additional problem that the point was not raised below and the Respondents may well wish to take a point based on cases such as Jones v Governing Body of Burdett Coutts School [1999] ICR 38 and Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719.
26. In our judgment the correct course for us to take in respect of this ground is to give Mr Conway leave to amend his Notice of Appeal by adding that ground and to proceed with it. He is to make that amendment within 28 days from today. That will mean that he should have received the transcript of this judgment within that time limit, should he require its assistance.
27. We will however expressly give leave to the Respondents to apply at the full hearing or if they wish to seek to do so before, to set aside or vary that grant of leave on the basis that it is raising a new point, or on any other ground they wish to advance.
28. I turn now to the other grounds of appeal raised in the Notice of Appeal (paragraph 6). The first in paragraph 6(i) was a "Seymour-Smith point" and it has now been struck out.
29. The next ground in paragraph 6(ii) relates to the other 15 or so Respondents. It seems to us that as a free-standing point this does not raise a point that would be reasonably arguable. As I have sought to explain, it seems to us that the relevance of the other Respondents (apart from Centre Point and Countrytech) was not that they were his employers, but was that the work that he did for them could be prayed in aid in support of the generalised proposition that there simply was no change and, therefore, that there was a relevant connection between Centre Point and Countrytech. Therefore, the material relating to these Respondents that Mr Conway was inviting the Employment Tribunal to take into account was evidence on the issue whether or not his employers were associated and did not lead to an argument of conclusion that he was employed by anyone other than Centrepoint and Countrytech.
30. This ground is however a connected or relevant point to the first issue, namely whether the Chairman should have sat alone because it raises the issues as to the nature of the evidence Mr Conway was going to be putting before the Employment Tribunal and upon which he was going to be inviting it to decide his entitlement to bring proceedings.
31. In those circumstances and, in particular, having regard to the fact that Mr Conway is acting in person, we have decided that this ground should at present remain within the Notice of Appeal. It follows that this Tribunal can have regard to it in respect of the first issue on the full hearing and also can, if it thinks fit at that stage, take it into account as a free-standing point together with the ground in paragraph 6(iii) which is a ground asserting that the Tribunal erred in law or was perverse. Again, it seems to us that ground (iii) has a connection with the first issue because it demonstrates the type of evidence that the Chairman was going to hear.
32. As to the ground in paragraph 6(iii) it seems to us, having heard Mr Conway, that an alternative way in which he puts his case is that the Extended Reasons do not satisfy the test set out, for example, in Meek v Birmingham District Council [1987] IRLR 250.
33. We will accordingly give him leave to amend the Notice of Appeal to make that point as well. That point being that the Extended Reasons do not sufficiently explain to Mr Conway why he won or lost. We give that leave on the same terms and with the same directions as set out earlier in paragraphs 26 and 27 hereof.
34. We comment that in identifying that ground we do not wish to give Mr Conway any particular encouragement that, in our view, he will succeed on it at the end of the day because, as I have pointed out, in paragraph 5 of their Extended Reasons, having heard evidence, the Employment Tribunal do reach decisions on issues of fact.
35. Two other points which Mr Conway raised before us in his argument related to the fact that he was not given a P45 on the alleged transfer from Countrytech to Centre Point but was given one when he was dismissed. He also took us to points relating to redundancy. His further point in that respect was that he says that the Tribunal failed to have regard to the guidance given, for example, in Payne v Secretary of State for Employment [1989] IRLR 353 which refers to de facto control. In our judgment the correct course for us to take at this stage is not to treat these points as free-standing points and to deal with them, but to leave it to the Tribunal at the full hearing to deal with them as it sees fit in connection with the grounds specified in paragraphs 6(ii) or (iii), the "Meek ground" or otherwise.
36. In paragraph 6(iv) Mr Conway raised points of law relating to de facto control. In our judgment that ground should go forward to the full hearing.
37. Additionally, in ground 6(v) of his notice of appeal and in his letter dated 12 October 2000, Mr Conway raises an argument of bias or procedural impropriety and he supports that by a declaration dated 3 November 1999. The test in respect of these grounds is confirmed by the Locabail decision and it is an objective test.
38. It seems to us, as it is apparent it seemed to Mr Justice Morison on the review decision, that the matters about which Mr Conway seeks to complain are matters which reflect the normal day-to-day cut and thrust within an Employment Tribunal. Very properly Mr Conway in advancing this ground before us was careful to acknowledge the qualification and skills of the Chairman and that he was not making a personal attack against him. He drew to our attention his subjective feelings, which we can understand, namely that as a litigant in person before a Tribunal at times he felt disadvantaged when, for example, he was stopped in answering a question, or he thought that the Chairman was providing undue assistance to a witness for the other side, and when he felt at a loss for words. However, looked at through the eyes of a third party objective observer, it seems to us that these points (and the others raised by Mr Conway in this respect) fall so far short of demonstrating any real danger of bias (or any suspicion of bias) that they do not give rise to points that are reasonably arguable. The same point applies to the opening comments at the start of the hearing before the Employment Tribunal referred to by Mr Conway in his Declaration.
39. We therefore do not allow the appeal to proceed on that ground which is ground 6(v) in the Notice of Appeal. Accordingly we strike out ground 6(v) in the Notice of Appeal. In doing so, we recognise that there is some connection between Mr Conway's subjective perception and the first point, namely that the Chairman should not have heard the case alone but that connection does not, in our judgment, warrant us permitting ground 6(v) to go any further.
40. I now turn to deal with the other appeal.
41. I have already set out the relevant rules. The grounds of appeal are again contained in paragraph 6. The first ground (in paragraph 6(1)) is that the Tribunal erred in that the hearing was struck out when it was listed as one for directions, which is closely connected with ground (3) (the Tribunal erred in not granting an adjournment), ground (4) (the Tribunal procedure was unfair) and ground (6) (the Applicant believes the Chairman erred in dismissing the remarks of a more senior judge in order to reinforce her decision to strike out the claim).
42. In our judgment none of those grounds raise issues that are reasonably arguable when one reads the Extended Reasons together with the Appellant's sworn statement on 3 November 1999.
43. It seems to us that, whatever Mr Conway's perception was as to the Chairman's approach and decision having an element of predetermination, the Extended Reasons demonstrate that this was not the case, even if one takes only the Extended Reasons on the first hearing. But when one takes into account the review, the point really becomes wholly untenable because the Chairman there went over the matter again in considerable detail with Mr Conway and reached a decision for the reasons given on both occasions.
44. As we read them the Extended Reasons demonstrate that Mr Conway shifted his ground slightly on both occasions as to what the continuing relevance of the claim relating to terms and conditions was. As we understand his present position it is that its relevance as a free-standing point is in respect of his claim for holiday pay.
45. He also has an argument which he would wish to advance in his appeal against the finding that there was not continuity of employment and if it succeeded and there was a re-hearing of the issue as to how long he had been employed. That argument is that he says that the correspondence relating to terms and conditions is supportive of his position on that appeal. Having regard to those points and the point that, as we understand it, he does still have an outstanding claim for arrears of holiday pay, albeit that he accepts and admits that it is not for a large sum of money, we are minded to allow this appeal to proceed on grounds (2) and (5) set out in paragraph 6 of his Notice of Appeal. Ground (5) links to the Chairman's expressed views on proportionality in exercising this discretion as to whether or not the proceedings are frivolous. At that stage she was, or may have been, unaware of the existence of the appeal against the finding relating to continuity of employment which, as I have said, was effectively stayed.
46. We have reached the view on this preliminary hearing that there is a reasonable argument that this part of Mr Conway's claim has a free-standing element to it in respect of his claim for holiday pay and also, that it is sufficiently linked to the unfair dismissal claim to warrant arguments being advanced concerning the Chairman's view on proportionality. Equally, the point that the Chairman makes as to delay is one where she did not have, or may not have had, the benefit of knowing that there was an outstanding appeal against the main decision which had been delayed waiting the decision of the House of Lords in Seymour-Smith.
47. Accordingly in respect of that appeal we will allow it to proceed on grounds (2) and (5) but strike out all the other grounds.
48. We will give this case Category B and a time estimate of a day.