United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D GREENE (Solicitor) Appearing under the Employment Law Appeal Advice Scheme


 


SIR CHRISTOPHER BELLAMY QC

1. This case arises in somewhat unusual circumstances in that it is an Appeal from a decision of the Employment Tribunal sitting at Birmingham on 8 March 2000 which consists of a single line to the effect that:

"The unaminous decision of the Tribunal is that the application is dismissed upon withdrawal by the applicant."

2. The background is that under an Agreement dated 1 August 1998 the Applicant apparently signed an Agreement with Shell relating to the operation of a filling station. That Agreement was terminated on 3 March 1999 whereupon the Applicant brought a claim for unfair dismissal.
3. The issues in the case before the Tribunal were whether the Applicant was "Employee" of the Respondent Company Shell; if so, whether the Applicant had the necessary qualifying period of service to apply for unfair dismissal; and if the answers to those two questions were 'Yes', whether the Applicant was unfairly dismissed.
4. What apparently happened emerges from the comments of the Chairman of the Tribunal on the Notice of Appeal which have been sent to this Tribunal under a letter dated 25 May 2000. Although there may be some dispute as to exactly what did transpire before the Tribunal, for present purposes it is sufficient for us to refer to the way the Chairman puts it in his comments.
5. According to the Chairman what happened was that he explained to the Applicant (and to other applicants before the Tribunal advancing the same case on that particular day) that the decision in the House of Lords in R v Secretary of State for Employment ex parte Seymout Smith & Perez required them to have a continuous period of service of at least 2 years. In the Chairman's view the Applicant, Mrs Gee, was in difficulty on that point because her Agreement was signed with Shell on 1 August 1998. She therefore had less than the qualifying period of service, and earlier agreements had been signed not between her and Shell but between her husband and Shell.
6. On the question whether Mrs Gee was an employee, it was also pointed out that there was a decision by a different Tribunal sitting in Liverpool to the effect that applicants in a similar situation to Mrs Gee were not employees, but that appears to have been a subsidiary issue. The Chairman in his comments highlights, in bold, the question of the length of service of Mrs Gee, and it seems to have been that particular question that was preoccupying the Chairman first and foremost.
7. There was then a submission on the part of Shell that in those circumstances, the bringing or the continuation of the cases amounted to an abuse of process. The Chairman apparently, therefore, sent the parties out, having explained the position to them, also saying to Mrs Gee as he, the Chairman, himself says: "We explained that a Cost Order may be considered and may not necessarily be limited to a fixed amount particularly if the Tribunal decided to award costs to be taxed". The Applicants then considered the position and decided to withdraw their claims.
8. What is said to us on behalf of Mrs Gee is that the Applicants in effect withdrew their claims because they felt under pressure as a result of the reference to the Order for costs, that in fact, Mrs Gee did have an arguable point to make on the question of length of service in that the Agreements with Shell prior to 1 August 1998 were not just with her husband but were in fact between her and her husband together. Mrs Gee refers in particular to a letter of 8 October 1993, which it was said was before the Tribunal, and certain other letters which are in this Tribunal's bundle, which are addressed to both Mrs Gee and her husband.
9. Her principal argument is that she did not have the opportunity to put that point, and also that she did not have the possibility of properly arguing the second point, as to whether she was an employee, although there are indications that both the Inland Revenue and the Department of Social Security have at different times taken the view that persons in the position of Mrs Gee are to be treated as employees for the purposes of legislation affecting tax and social security.
10. Those points are, of course, contested by Shell but at this stage on an Ex Parte Preliminary Hearing we are simply concerned to identify whether there is a reasonably arguable point of law in this case to proceed to the full Appeal, at which stage the parties will have the opportunity to argue the matter fully.
11. We are of opinion that there is a reasonably arguable point of law in this case which results from the procedure that was adopted in this case.
12. It is apparent from regulation 12(1) of the Employment Tribunals Rules of Procedure 1993 that the power of the Tribunal to order costs applies where a party has in bringing or conducting the proceedings acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably. While it may be very often appropriate and indeed desirable that Tribunals should encourage parties to settle or discontinue cases in appropriate circumstances, the power to award costs is limited by the regulation that we have just cited. It appears to us, in the circumstances, that there is an arguable point of law, which is whether the Tribunal in fact erred in law by adopting a procedure which resulted in a breach of the rules of natural justice by effectively depriving the Applicant of a fair opportunity to put their case in circumstances where the Applicant withdrew from the proceedings after the possibility of a Cost Order had been mentioned.
13. It is on that procedural issue that we allow the case to go forward. We say nothing about the merits of the claim, that is to say either on the issue of whether Mrs Gee is an employee, or on the question of the length of service. All we are saying is that there is material in the Tribunal's file which merits the question of whether there was a fair hearing before the Tribunal to be further investigated in the context of a full Appeal.
14. We therefore have to give directions as to this matter. It is to be regarded as a Category C case. A reasonable time estimate would be 2 hours. Skeleton Arguments to be exchanged in the normal way.