United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	THE FIRST APPELLANT IN PERSON AND ON BEHALF OF THE SECOND APPELLANT
For the Respondents	MISS ALISON WOODS (Representative)


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us, by way of a full hearing, the appeal of Mr R Morgan and Mr J Rowley in the matter Morgan & Rowley v Brith Gof Cyf, which is a drama company. Today Mr Morgan has represented both appellants, who were applicants below. Alison Woods is co-secretary and ex-director of the respondent drama company and she appears for them today.

1. On 4th July 1997 each of Mr Morgan and Mr Rowley presented IT1s in identical form and, as it would seem, they were IT1s that had been prepared with professional assistance. The claims were for unfair dismissal and in the alternative, breach of contract. As they were originally framed, they gave dates of employment from June 1990 to 5th April 1997 and so, in point of appearance of things, they were asserting more than the two years continuous service which was then the required starting point for a claim in unfair dismissal.
2. It is important to see how the claims in contract were framed in the IT1s. As we mentioned they are identical. Each began:

"In January 1997 the Applicant was promised work with the Respondent Company for the rest of the year and was asked to confirm that he would be available to work for the Company full time for that period. The Applicant duly gave this confirmation."

So what is alleged there is a promise and a confirmation. Work was promised for the year 1997 from some date in January and confirmation was given that the artist would be available to work fulltime for that period. In other words, as it would seem, for the rest of the calendar year 1997. A breach of the contract was alleged. The IT1 continues:

"The Applicant worked on a production at Ely Hospital until 5th April 1997. When its run ended the Respondent dismissed the Applicant on the basis that there was no other available work."

A little later in the IT1:

"The Applicant is aware of 2 other projects, namely Hafod to be performed at the Eisteddford and "Once upon a Time in the West" which has gone on tour to Romania, that he was due to be involved with and which have now been given to other performers.

The Respondent has failed to provide any cogent reason for their decision to exclude the Applicant from the productions and to dismiss him.

The Applicant therefore claims unfair dismissal and or in the alternative breach of contract."

There is no claim of an alternative contract there that if or so long as Hafod is produced then the artists would be within it. Equally, no pleading there of an alternative contract that if and so long as 'Once upon a Time in the West' was produced within a period that the artists would be in it. One reverts to the beginning of the claim, namely that "the Applicant was promised work with the Respondent Company for the rest of the year and was asked to confirm that he would be available to work for the Company full time for that period". That is the nature of the contract as it appears in the IT1.

3. On 11th July 1997 there was an IT3 from the theatre company which asserted that there had been two contracts in writing and it attached them to its IT3. They provide, as to one of the contracts, for employment from 6th January 1997 to 30th March 1997 and that is a form signed by both artist and the company in both cases. Then, in the other form, it was from 31st March 1997 to 6th April 1997, that is to say immediately following on the immediately preceding contract. That is unsigned by either side in both cases.
4. It seemed, therefore, that there were three forms of contract in front of the tribunal for them to consider, namely, the two asserted by the company in that written formulation and the one asserted by the artists in their IT1s.
5. On 12th September 1997 there was a hearing before the Chairman alone and on 23rd September 1997 the decision was sent to the parties.
6. The decision of the Chairman, Mr John Thomas sitting alone, was:

"(i) the applicant's claim for compensation for unfair dismissal is withdrawn and by consent dismissed.

(ii) the applicant's claim for breach of contract fails and is dismissed."

7. So far as concerned the position as to unfair dismissal, that was dealt with in paragraph 1 of the full reasons which reads as follows:

"… A preliminary point was to be taken in respect of the period for continuous employment but at the start of the application both applicants conceded that they had insufficient service. A short adjournment of half an hour was ordered to enable the applicants to consider their position after which time it was confirmed that they wished to withdraw that aspect of their claims and to proceed with their allegations of breach of contract."

8. The matter has been before the Employment Appeal Tribunal three times and the position now is that we have in front of us amended grounds of appeal specifying what is the only matter now in front of us. The amended grounds of appeal raise two points. The first is this:

"The Employment Tribunal erred in:

(1) failing to deal with the Appellants' case.

(a) The Appellants' case was the Respondent had engaged them on terms that they were to be available for a year, and that if any opportunities arose in that year for the performance of Hafod, the Appellants would be given that opportunity;

(b) The Employment Tribunal (in paragraph 7 of its decision) recorded that the Appellants' case was that they were to be engaged for a year and that they should be available for a year;

(c) The Employment Tribunal in paragraph 10 of its decision accordingly dismisses a case which had not been put to it, and fails to make findings on the case that was put to it."

Well, as to that, one needs to go back to the reserved decision and its full reasons. In paragraph 2 the Chairman, Mr Thomas, said this:

"Both applicants are artistic performers. The respondent is a drama company. Both had been engaged by the respondents under two contracts to perform in a drama project headed "Tuag At Hafod" from 6 January 1997 for a guaranteed period until 30th March 1997. They were to be paid in weekly instalments of £300. At the conclusion of the contract another was to begin for one week from the 31st March until 6th April. The first contract was dated from the 2nd of December and the second was dated from 4 March."

Now that seems to be an acceptance of the written contracts which had been asserted by the theatre company and which had been annexed to its IT3. The Chairman recognised that the artists had asserted a different kind of contract. He deals with that at paragraph 3:

"The applicants' case is that those written contract do not reflect accurately the true contractual situation. They allege that there had been a verbal contract to cover the whole of the period of 1997 and that this verbal contract was reduced in part to writing to cover the first 13 weeks of that period from the 6th of January to the 4th of April. It was reduced to writing straddling the financial year for the purposes of accounting."

Now that is a variation upon the contract asserted in the IT1 but not perhaps seriously inconsistent with it. The Chairman then continued:

"4. They were then told in June by Mr Cliff McMaster, the director [it should read as Mr McLucas] that there was no further work that the company could offer them. They now claim that they had lost income from performances which the company made of a production now known as Hafod at the Bala Eisteddfod and at tours which the company undertook in Italy and Romania with other productions.

5. The respondents allege that the only contractual obligations are those which have been reflected in the written contracts for the guarantee periods of 13 weeks reflected in the contract, which period has now expired.

6. Absolutely fundamental to the issue in this application is what was said and agreed at a meeting between Mr McMaster [Mr McLucas] and the performers including the applicants in November 1996."

There is a confusion about the name. By the time we get to paragraph 7 the Chairman corrects it; that paragraph begins:

"On the 4th of November the performers were gathered together by Mr McLucas and he spoke to them of his view of the company's strategy. …"

Something is sought to be made of this error in nomenclature but what one really has to judge is the reasoning in the case and not what could be little more than an error of transcription. The Chairman then records Mr McLucas' evidence; he says in paragraph 8:

"Mr McLucas for the respondent, on the other hand, agrees that whilst he was trying to create continuity of work for performers and desired to employ the performers for as long possible and as frequently as possible this was only his intended strategy and it was not possible to offer contracts other than the two made without a guarantee of funding or other income. Because the company is grant aided and has limited income from other sources, such a legal commitment would have been impossible."

The Chairman obviously preferred Mr McLucas' evidence; he says at paragraph 9:

"I find that the evidence of Mr McLucas is that which is accurate. The applicants are mistaken as to what the arrangement made in November were. …"

Reasons are given by the Chairman for that preference. He continues in paragraph 9:

"I base that upon the documentary evidence which has been produced by Mr McLucas who is able to point to the notes to which he spoke in that meeting of 4 November. They are to be found at 3.1 in the Bundle. They are perfectly clear and indeed use some of the language that the applicants recall. There is a reference there to total commitment which the applicants remember as being a reference to the year. However in the notes there is a reference to three months "no longer at this stage" and the note "if I feel it has worked by next financial year then I will make a case to the board for a new kind of contract some time during next year". …"

At paragraph 10 the Chairman says:

"There is nothing in those notes which I can find which amounts to an offer of a contract of work for these applicants or anyone during the whole period of 1997. …"

Then the Chairman turns to an alternative form of contract. He says this in his paragraph 12:

"The applicants alternatively would try to establish that there had been an agreement arising implicitly from the terms of the fixed term contracts that the work produced by them in that period should be performed by them and not other performers when later staged. …"

But that too is rejected. The Chairman says at the end of paragraph 12:

"… There is no material on which I can conclude that there had been an agreement that the kit of parts created in the first 13 weeks of 1997 was material which was performed at the Bala Eisteddfod or was required contractually to be performed by the applicants later in the year at any other venue."

The final paragraph says:

"13. Consequently these applications fail on the basis that the applicants were contracted to work for 13 weeks commencing in January and ending in April of 1997 and for which they had been paid."

9. So the only contract asserted in the IT1s was rejected. It was specifically held that there was no offer of work save for the 13 week period that was spoken of in the written contracts. The written contracts were produced to the tribunal and accepted by the tribunal as having been made. There was no agreement that a kit of parts contract had been made, either as to performance at the Bala Eisteddfod or elsewhere. Mr McLucas' evidence was accepted as accurate and the artists' evidence was held to have been mistaken or at least their evidence as to what the arrangements had been in November 1996 was held to have been mistaken.
10. Against that we revert to the Notice of Appeal. The case there, as we have already cited, was that the tribunal had misunderstood the nature of the claim. It was not a claim for a year's employment from January, but a claim that if works were to be revived in the course of the year then these particular artists would be used in the revived performances.
11. Unfortunately, from the applicants' point of view, no such contract had been asserted in the IT1. If there had been such a contract asserted in the IT1 there would have been a difficulty, of course, in squaring that form of contract with the written forms of contract which had been produced to the tribunal. There is no good reason to accept that the alleged form which Mr Morgan now argues for had indeed been part of the appellants' case. There might well have been some confusion as to what their case was. But they had been mistaken. They had been mistaken as to continuous service and they had been held to have been mistaken as to the arrangements made in November 1996. Where there is doubt about exactly what a party's case was at a tribunal, well then, naturally one goes back to the IT1 to find out how the case was put. However generously one reads the IT1, one cannot find that the form of contract which Mr Morgan now asserts should have been ruled on by the tribunal.
12. When the matter was last in front of the tribunal, Mr Morgan was adamant that there had been, as he understood it, an amendment to the IT1. With some reluctance the matter was adjourned so that we could make enquiries of the Chairman to find out what the position was as to amendment. That led to a letter from the Employment Tribunal's regional office in Cardiff of 2nd May 2000 saying that Mr Thomas had reviewed the file again. The letter says that he has a very clear recollection of this particular case and he says that an application to amend the Originating Application was not made prior to the commencement of the evidence and certainly not agreed or granted.
13. It may well be that there was some dealings between the two artists, Mr Morgan and Mr Rowley as applicants and their solicitor, Mrs Catherine Hughes, that led them to believe either that the IT1 had been amended or that it would be or that it did not need to be or something on those lines. But there does not seem have been any formal application for an amendment. Certainly none that registered with the Chairman.
14. Mr Morgan says that one cannot really expect lay applicants to know what the situation is, namely that they have, to ask for an amendment if there is to be an amendment.
15. But that seems a somewhat elementary thing to expect of even lay applicants. In other words, their case will be as they have framed it unless they seek to amend it. Whether Mr Morgan and Mr Rowley have any complaint as against their solicitor is not a matter for us nor, indeed, was a matter for the tribunal below. We could not begin to rule upon it.
16. Mr Morgan says that an extract of a letter of 11th July 1997 between the applicants and their solicitor should have drawn the Chairman's attention to the fact that they were minded to amend.
17. It is not right to regard a document as being truly before a tribunal simply because somewhere in a bundle it might be there to be found. There is no suggestion that the letter was actually read to the Chairman or drawn to his attention in any other way and in any event the extract that we have seen does not seem to indicate that the applicants were minded to seek leave to allege a different type of contract or anything clearly related to a change in the pleadings in the case. Unfortunately, therefore, from Mr Morgan's point of view, we have to approach the question of whether the tribunal directed its mind to the issue by looking at the IT1 and we find that the contract as framed in the IT1 was indeed ruled upon by the Chairman but ruled upon against Mr Morgan and Mr Rowley's interest. But that was a decision come to on the facts which the tribunal found and we do not find any error of law in that part of the case.
18. The second ground of appeal is this:

"(2) failing to consider whether it was properly constituted in accordance with section 4 of the Employment Tribunals Act 1996;

(a) the proceedings were initially listed as an unfair dismissal hearing before a chairman sitting alone;

(b) the Appellants' agreed to withdraw their unfair dismissal complaint; the Chairman continued to sit alone and hear a complaint of breach of contract in circumstances where it should have been apparent to him that the claim should have been heard by a full panel, or that there was an issue whether it should be so heard (paragraph 6 of the decision, sections 4(1); 4(3)(d); 4(5)(a) and 4(5)(c) of the Employment Tribunals Act 1996)."

19. This requires us to have a look at the statutory provisions. One begins with section 3 of the Employment Tribunals Act 1996. It is headed "Power to confer further jurisdiction on employment tribunal":

"(1) The appropriate Minister may by order provide that proceedings in respect of –

(a) any claim to which this section applies, or

(b) any claim to which this section applies and which is of a description specified in the order,

may, subject to such exceptions (if any) as may be so specified, be brought before an employment tribunal.

(2) Subject to subsection (3), this section applies to –

(a) a claim for damages for breach of contract of employment or other contract connected with employment,

…

if the claim is such that a court in England and Wales or Scotland would under the law for the time being in force have jurisdiction to hear and determine an action in respect of the claim.

(3) This section does not apply to a claim of damages, or for a sum due, in respect of personal injuries."

So here for the first time Employment Tribunals were given a jurisdiction to hear pure breach of contract cases which hitherto had been heard in either the County Court or the High Court, where, of course, they would have been heard, generally speaking, before a judge, a lawyer alone.

20. In section 4 of the Act one has the heading "Composition of a tribunal":

"(1) Subject to the following provisions of this section and to section 7(3A), proceedings before an employment tribunal shall be heard by –

(a) the person who, in accordance with regulations made under section 1(1), is the chairman, and

(b) two other members, or (with the consent of the parties) one other member selected as the other members (or member) in accordance with regulations so made."

So, broadly speaking, although there is obviously a degree of small print there, it is saying that provisions shall be in front of a Chairman with two members, a three person panel. But subsection (2) then provides:

"(2) Subject to subsection (5), the proceedings specified in subsection (3) shall be heard by the person mentioned in subsection (1)(a) alone."

and that is a reference back to the Chairman. Then in subsection (3):

"3) The proceedings referred to in subsection (2) are - "

Then there is a whole category of different alphabetical descriptions, one of which, (d), is:

"(d) proceedings in respect of which an employment tribunal has jurisdiction by virtue of section 3 of this Act."

So, in other words, if it is a breach of contract claim within section 3, which this one was, it would ordinarily be obliged to be heard by a chairman alone, because it would be a subsection (3) case and, therefore, was under subsection (2) to be heard by a Chairman alone. But one has to remember the words that open subsection (2), namely, "Subject to subsection (5)". Subsection (5) say this:

"(5) Proceedings specified in subsection (3) shall be heard in accordance with subsection (1) if a person who, in accordance with regulations made under section 1(1), may be the chairman of an employment tribunal, having regard to –

(a) whether there is a likelihood of a dispute arising on the facts which makes it desirable for the proceedings to be heard in accordance with subsection (1),

(b) whether there is a likelihood of an issue of law arising which would make it desirable for the proceedings to be heard in accordance with subsection (2),

(c) any views of any of the parties as to whether or not the proceedings ought to be heard in accordance with either of those subsections, and

(d) whether there are other proceedings which might be heard concurrently but which are not proceedings specified in subsection (3),

decides at any stage of the proceedings that the proceedings are to be heard in accordance with subsection (1)."

So a Chairman can, in his discretion, require that what is primarily a Chairman-alone case such as, for example, one specified in subsection (3)(d) - a contract claim - can go instead to a full tribunal of three.

21. The only contest before the Employment Tribunal in our case by the time the unfair dismissal case had been ruled out, as we have earlier read, was a claim for breach of contract. Unfair dismissal had fallen by the wayside by reason of the absence of a sufficiently long period of continuous employment. That was what the Chairman held. All that was left was a breach of contract claim and there is that mandatory provision in section 4(2) that subject only to subsection (5) it should be heard by the chairman alone. There was no decision under subsection (5) that it should be heard other than before the Chairman alone and so it was left, inescapably, as before the Chairman alone.
22. The Notice of Appeal, as we have cited, says that the Chairman continued to sit alone to hear a complaint of breach of contract in circumstances where it should have been apparent to him that the claim should have been heard by a full panel.
23. Why should it have been apparent that there ought to be a full panel? Breach of contract claims commonly involve disputes of fact. There is no requirement that every time a dispute of fact arises it must be heard by a full panel. The Chairman has to exercise a discretion as is required by subsection (5). One of the factors that will no doubt be taken into account by a Chairman is whether any party requests a panel of three, but it is not said here that any such request was made. Nor, it seems, was the subject raised in any way whatsoever.
24. Mr Morgan very properly draws our attention to the reported case of Sogbetun v Hackney London Borough Council [1998] ICR 1284 EAT. That was an unfair dismissal case. That, in itself, is a distinction between that case and this, because, as we have mentioned, once argument got truly underway here, this was a breach of contract claim alone. A breach of contract claim alone would before the Act have gone to the County Court or to High Court, judge alone, which is presumably why the legislature provided in section 4(2) and (3) that it should, subject to subsection (5), now go to the qualified lawyer, the Chairman alone. A further distinction between our case and Sogbetun is that the issue of whether there should be three or one in the panel had been raised in Sogbetun but it was not touched on at all in our case.
25. Mr Morgan very properly refers us to passages of considerable relevance in Sogbetun, which we must refer to. Thus, at page 1268B-F, the Employment Appeal Tribunal, whose judgment was being delivered by the President, Morison J, said:

"… Subsection (5) confers a discretion on a chairman not to sit on his own in relation to such proceedings having regard to various statutory criteria. Because of the words "Subject to subsection (5)" it is our view that if a chairman sits on his own that is because he has declined to exercise his discretion to refer the matter to a full tribunal. Therefore, whenever a chairman sits on his own he must have exercised his discretion under subsection (5), albeit negatively. A case cannot be heard by a chairman alone without the matters referred to in subsection (5) having been evaluated. There is, thus, a two-stage process: first the proceedings must be identified as qualifying proceedings; and, second, they must be proceedings in which a chairman has exercised his discretion and has not decided that it would be desirable for them to be heard by a full tribunal. The consent of the parties is not determinative as to how the discretion should be exercised both because of the two-stage process and because of the provisions of subsection (5)(c). The matters specified in subsection (5) must be considered whichever paragraphs of subsection (3) apply, including subsection (3)(e).

It seems to us clear that, having regard to the issues of fact in this case, no reasonable tribunal chairman properly exercising his discretion could have concluded otherwise than it was desirable and necessary, for the case to be heard by a full tribunal in accordance with subsection (1) of section 4."

Then at page 1269G:

"… If, in a "sit alone" case, a tribunal chairman had never exercised his discretion at all under section 4(5), it seems to us that the tribunal would not have been constituted in accordance with the statute. If a tribunal was improperly constituted, then it seems to us that it cannot have arrived at a lawful decision. Its decision would be a nullity. On that basis, whether or not the parties had consented to or acquiesced in what happened, the appeal tribunal should remit the case back for consideration by a tribunal properly constituted. Parties cannot confer jurisdiction on a statutory tribunal such as this, either by consent or through the doctrine of estoppel. …"

At page 1270C:

"Further, we are of the view that the parties and the appellate courts are entitled to know why an unidentified or an identified chairman has exercised his discretion under section 4(5). A short statement of the reasons for his conclusions is all that is required. These will show what particular factors he took into account when deciding as he did. The need to give reasons will, we think, be of assistance to chairmen called upon to exercise their discretion because it will help them to focus their attention on the factors which Parliament require them to take into account."

26. With respect to that decision by the Employment Appeal Tribunal, we cannot agree that that represents the law. So far as concerns whether a decision would, for want of a clearly expressed exercise of the discretion under section 4(5), be a nullity, we respectfully adopt the reasoning of a later constitution of the Employment Appeal Tribunal headed by Charles J in The Post Office v Howell [2000] ICR 913 EAT. In that case the EAT was content to follow Sogbetun as a matter of comity, see page 918 at paragraph 27. We must revert to the statutory provisions. Section 4(5) describes a particular type of event. It describes the factors that lead to or away from that event and it describes the consequences of the event. The event is the Chairman's decision that a case should be heard under subsection (1), i.e., by a panel of three. Unless that event occurs then a case which ordinarily falls within subsection (3), such as the one before us, will necessarily be heard by a panel of only one because subsection (2) is mandatory in that respect. Parliament could very easily, of course, have cast the matter the other way about. It could have said that there was to be invariably a panel of three unless there was a decision by a Chairman that there should be a panel of one. But the way it is framed is that unless there is that subsection (5) event, the Chairman's decision that there is to be a panel of three, a breach of contract claim falling within subsection (3)(d) is inescapably to be heard by a panel of one. Once there is the subsection (5) event then there has to be a panel of three because subsection (5) begins with "shall be heard in accordance with subsection (1)". There is no discretion about it once the subsection (5) event has occurred. But unless and until that subsection (5) event occurs, the hearing is to be heard by one alone.
27. The fallacy, as we would respectfully see it, in Sogbetun, is to be found in that first passage on 1268 where it says:

"Because of the words "Subject to subsection (5)" it is our view that if a chairman sits on his own that is because he has declined to exercise his discretion to refer the matter to a full tribunal. Therefore, whenever a chairman sits on his own he must have exercised his discretion under subsection (5), albeit negatively."

Rather the case is that unless the Chairman has decided to go to a panel of three the matter is inescapably proper only for a hearing by a panel of one under section 4(2). There is a danger that the approach adopted in Sogbetun really rewrites the statute by making it operate as if it provided that unless the Chairman had duly declined to choose a panel of three, there should be panel of three. But that is not what the section provides. Parliament could, of course, have expressly cast upon a Chairman an obligation in every case to consider whether the matters described in subsection (5)(a), (b), (c) and (d) pointed towards a hearing in front of a panel of three. Parliament could have provided that that was to apply in every breach of contract case or to some breaches of contract cases, and distinctions might have needed to have been drawn between different categories. But it is a very strange way to frame an obligation on a Chairman which is said to require him to decide something by framing it by saying "if the chairman decides", which is the formula that subsection (5) adopts. If Parliament had meant to cast a duty upon a Chairman invariably to consider the sort of matters that are raised in subsection (5) it would say "the chairman must decide" or "the chairman shall decide" or something along those lines and not begin, as it does, by saying "if the chairman decides".

28. It is no doubt desirable for a Chairman to reflect upon subsection (5), even if he is not invited to do so. And certainly, of course, if he is addressed on the subject or it is raised in the papers, well then, he has to turn his mind to the issues described in subsection (5). Whenever there is real doubt on the question, it must always, in our view, be better for him to prefer a panel of three. But it is not, in our view, an error of law on a Chairman's part, when dealing with a case which is a subsection (3) case and the point is not being raised by anyone, not to turn his mind to subsection (5). Nor is it an error of law for him not to have expressed openly the considerations that he might tacitly have had in mind. Suppose this, as a rather extreme example: at the end of a hearing of a subsection (3) case where no one at any stage had raised the issue of whether there should be one person or three hearing it but where it had been heard by the Chairman alone, that at the end of the hearing, after he had given his decision, the Chairman made some remark such as "I had not thought at all of subsection (5) but now I see I could have sat with others" or even, "Now I see that it would have been preferable for me to sit with others" or something along those lines. That, surely, would not represent a nullification of his decision. Again, so far we reiterate that we adopt the reasoning of The Post Office v Howell cited earlier. But nor would it either, in our view, represent an error of law in relation to the hypothetical Chairman's decision in the case such as to entitle the Employment Appeal Tribunal to interfere with that decision. It would not be a material error of law. It would really be more a somewhat disturbing and startling admission of ignorance on the hypothetical Chairman's part but not, truly speaking, a relevant error of law.
29. Another way of looking at the matter, in case we are wrong in that, is this: would it be material for us to consider whether the tribunal's decision here, that is to say the decision of the Chairman alone, was perverse. Was the exercise of the discretion, had it been exercised here, such that a reasonable Chairman acting properly could only have decided that this was a proper matter for three to hear and only for three to hear.
30. It was a breach of contract case. It could have gone to a court where it would have been heard by a judge alone. There were written forms of the contract before the tribunal for it to consider. The evidence was in a relatively confined area. It cannot be said that lawyers are unfit to deal with questions of fact; they do so all the time up and down the country. One has to have regard to the nature of the factual dispute, if there is a factual dispute, and here, as it would seem to us, this particular case was not the sort of case where the experience of either the employer or the employee sides of industry or of employment would greatly assist. We would be last to question the utility of lay members, especially in relation to cases of unfair dismissal, perhaps particularly constructive dismissal, racial discrimination, sex discrimination, disability discrimination and many other areas where the lay members' input is extremely valuable and where working knowledge of conditions and practices in areas of industry are crucial. But here what was in issue was simply what were the terms of the contract of employment of Mr Morgan and Mr Rowley. No party requested a panel of three. The issue was never raised. An adjournment, had anyone thought of it, would probably have been necessary had a panel of three been insisted upon, and, no doubt, one side or another or possibly both would have sought to resist an adjournment simply because it would mean going away and coming back and further expense and further delay. In those circumstances, we could not possibly hold that a decision to retain the matter to be heard by the Chairman alone could have been perverse. If that is a material approach we would so hold.
31. In all the circumstances we cannot see the Sogbetun argument helping the appellants, for the reasons that we have given, and we are unable to detect an error of law in this second part of the case, namely in that the Chairman continued to regard the matter as fit for himself alone and failed to draw to the parties' attention that it could have been transferred to three if they had so applied and had he so ruled. We see no error of law in that part of the case and accordingly we dismiss that second ground as well.
32. Therefore, on dismissing both of the two points, we have to dismiss the appeal as a whole.