United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D O'DEMPSEY (of Counsel) Appearing under ELAAS


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us, by way of a preliminary hearing, the appeal of Mr M J McGuire in the matter of McGuire v Initial Deborah Services Ltd.

1. What was in issue in this case, looking at the IT1 as a whole, was whether there had been a short break in Mr McGuire's employment such as to deny him the necessary two years continuous employment which was, at the time, a pre-condition of a complaint under the heading of unfair dismissal.
2. This matter has a slightly unfortunate procedural history. A great deal of time has been taken up to no great effect, although it is far from easy to apportion blame.
3. There was a hearing before the Employment Tribunal on 13th October 1998. We have the Chairman's Notes of Evidence then given but it is part of the appellant's case that there was evidence which he was refused the ability to adduce. That was evidence as to company's practice of having employees, of whom he would say he was one, in a pool who were or remained employees notwithstanding their not being paid for short periods and not working for the company during those short period. In other words, in effect, they were laid off rather than having no employment whatsoever. That could be so, said Mr McGuire, even where the employee concerned had been given his or her P45.
4. What Mr McGuire says on oath is this:

"5. At the hearing the chairman refused to allow me to deduce any evidence relating to any period of employment outside the period between the 4th and 28th October 1998. I wished to adduce evidence to show what the practice of the respondent was. This evidence was to show that the branch where I worked at Truro ran a pool of workers. Not all those workers were on the current pay roll and there were arrangements made for their wages to be paid outside the normal pay packets.

…

8. To the best of my recollection I tried to adduce this additional evidence three times and on each occasion the chairman refused to let me do so."

5. As the very experienced Chairman comments, Chairman's Notes will not record evidence that was not given. The Chairman in a letter of 19th November 1999 says this:

"The appellant says that I refused to allow him to deduce (sic) any evidence relating to any period of employment outside the period between 4th and 28th October 1998. I have no recollection of this. That is not to say that did not happen – it is, however, unlikely. My notes indicate conversations that went on in September between the applicant and the Regional Manager, and the applicant said that he had been working as a labourer. I recall no reference to a pool of workers, some of whom were not on the payroll. That is clearly relevant evidence, as was the alleged arrangement for the payment of their wages. I find it difficult to believe that I would have excluded such evidence had it been raised. I do not recall an application to introduce diaries, other than those contained in the respondent's bundle. …

… Any evidence of temporary cessation of work was relevant – that was not argued – as was any arrangement or custom. The applicant would, I am sure, have been allowed to adduce evidence on this point and make submission. It was a vital element of the case."

But with characteristic candour, he had begun his letter by saying:

"At this length of time, it must be appreciated that I have little or no recollection of this hearing."

6. So we are left with rather an awkward position, that whilst Mr McGuire's case, which he supports on oath, has elements which can be described as improbable, and whilst it is unlikely that a clear and unambiguous application to adduce the evidence, which he claims he sought to adduce, was both made and refused on 13th October 1998, for all that, we cannot say that Mr McGuire's oath on the point can be taken to have been already disproved at this stage when the respondent has not yet been invited to comment on the matter.
7. This difficult position is a factor in deciding whether or not to go to a full hearing at which the respondent would be enabled to have its say. The respondent may be able to fill in the gaps in the Chairman's memory. It is a factor that points to the case going forward. There is another. A feature of the evidence that was undoubtedly given was that Mr McGuire acquired a new and different employee-number after the interval during which, as the respondents say, there was a break in his employment. At paragraph 7 of the extended reasons it says this:

"7 … On the wage slips following the end of October – there are no wage slips for the intervening period – he had a new department number. He says that he moved from Truro elsewhere. Therefore, there would be a new department number – quite understandable. However, he had a new employee number. Says the applicant that was required by the computer. We do not see that – quite the contrary. An employee number keeps track of the employee's history in the business – a new number would confuse things. There is no reason, we consider, to give the applicant a new employee number if his employment had continued. …"

And a little later:

"9 …When he started again, [this is after the alleged break] he had a different employee number and filled out an Employee Joining Form, wholly inconsistent with the contract continuing."

8. It has transpired that there was no direct evidence that only upon restarting employment, having ceased to be employed for a while, would an erstwhile employee acquire a new employee number. The Chairman has written on the point and what he says is this:

"The Chairman accepts that there was no direct evidence that an employee number keeps track of an employee in the business. The conclusion stated was reached in the light of the evidence that the respondent highlighted the new employee number and accepted that the move to a new location would entail a new department number. Further, that if it was simply a transfer of depot, there would be no termination of employment or the need for a new starter form – which we concluded led to the new employee number."

9. We have the Chairman's Notes, as we mentioned earlier, and Michelle Wood on the company's part gave evidence (page 16 of the bundle):

"Payslips. The applicant had a different employee number.

He had a different department number because of the change in location.

…

There is no need for document 19 (starter form) if the employee is only changing depot.

The form is only used for employees who are joining the company hence it is known as and called the new starter form."

10. It is not possible for us to conclude whether the tribunal's inference that a changed employee number necessarily indicated a cessation of employment and a later restart was well-founded. It could be, we say no more than that, that the tribunal's inference was unfounded on a point which the tribunal plainly took to be of central importance. That is a second factor in the decision as to whether or not to direct the case to go to a full hearing and also points in the direction of a full hearing. It would, of course, be an error of law to draw an inference for which there had been no sufficient raw material given in evidence.
11. Let it be supposed that we did let the matter go forward. The respondent employer may have some real light to shine on the two points that we have so far identified. The EAT may then be able to decide the appeal justly, having regard to what both sides have said. But let it be supposed that doubt as to those two points is likely to remain even after the respondents have attended and the matter has been argued. At that point yet another point emerges. The actual decision of the tribunal is in their paragraph 10:

"In those circumstances, we are satisfied that the applicant's continuity of employment runs from the 28th October or 29th October 1996. It follows that he does not have 2 years' qualifying service required by the Act, and the Tribunal is unable to consider his complaint at present. The applicant asks us to stay the proceedings, pending the House of Lords decision in Seymour-Smith which we so order."

It is arguable that anything but the material which relates to the question of a stay under the Seymour-Smith case is not a reason for the decision, which is simply to stay the proceedings. The actual heading of the decision is:

"The unanimous decision of the Tribunal is that the application is stayed."

Anything that is unnecessary to the decision merely to stay could be said to be as yet provisional. There has to be a reference back to the tribunal in any case unless the appellant indicates his willingness to drop his appeal, which seems to us to be extremely unlikely.

12. The arguable possibility that all that is not strictly relevant simply to staying the case under Seymour-Smith is still provisional provides yet a further possibility of argument under which Mr McGuire is able to urge that fresh material should be admitted by the Employment Tribunal.
13. All these factors together all point in the same direction. There may be other factors, which Mr O'Dempsey would have pressed upon us had we heard him at any length at all. Mr O'Dempsey is kindly appearing under the ELAAS scheme. We cut him short because we were, in any event, in his favour, so we have not asked him to develop points; he might well have had further and better points to develop. But suffice it to say that the reasons which we have given all seem to point to the matter going to a full hearing and we simply now ask Mr O'Dempsey what further directions would be necessary in relation to that full hearing.
14. Leave is granted to re-amend the Notice of Appeal. The proposed form to be lodged with the President, not later than seven days hence, for me to consider, because I do not want things to go forward that were never intended, as can happen if a blanket leave is given to amend. The respondents are to file their evidence (if any) not later than 21 days from their receipt of today's transcript unless they apply to the contrary. They are at liberty to apply for an extension to the President. The case to be listed as Category B, duration half a day.