United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS ELLENBOGEN (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE WALL

1. This is the preliminary hearing of appeals by Mr Clive Ellison (the Appellant) in relation to three decisions which we will first of all identify and then discuss. The first decision against which it is sought to appeal is the decision of the Employment Tribunal sitting in London (North) on 1^st December 2000, (that date I'm told is not clear) that the Appellant's complaint of unfair dismissal be dismissed on withdrawal by the Appellant. The second decision is that of the Employment Tribunal sitting in London (North) on 17^th April 2001, promulgated on 30^th April, that the Appellant's request for a review of the decision of 1^st December 2000 be refused together with an order that the Appellant pay £500 towards the Respondent's costs. The third decision is that of the Employment Tribunal sitting in London (North), marked as sent to the parties on 20^th May 2001. The date of the sitting is unknown but the decision was that the Applicant's application for a review of the decision of 17^th April be refused.
2. As this case turns very largely on procedural issues, I can deal with the facts in very short order. The Appellant is a dentist who was employed by the Respondents and was paid a proportion of the fees charged by the Respondents for both private and National Health patients. The Respondents took the view that there were substantial discrepancies in the Appellant's fee charging and talked to him about it. The Appellant denied there were any discrepancies of any kind. Shortly thereafter, the Appellant was dismissed by the Respondents.
3. The Appellant's IT1 is dated 5^th April 2000. It claims unfair dismissal. On 16^th June of last year, there was a preliminary hearing because the Respondents sought to argue that the Appellant was not an employee, but self employed and therefore not within the Act. The preliminary hearing was in the Appellant's favour and the matter was listed for a full hearing in November 2000.
4. On 4^th October 2000, in circumstances that are not clear to us, a bankruptcy order was made against the Appellant. On 30^th October, a solicitor acting for the Appellant notified the Tribunal that the Applicant had been declared bankrupt and sought an adjournment of the hearing fixed in November. That adjournment was granted although the dates do not emerge from our papers.
5. On 24^th November the Appellant's trustee in bankruptcy wrote to the Tribunal stating that he did not wish to continue with the Appellant's claim for unfair dismissal. It appears from the internal documentation, although we do not have the letter itself, that on 27^th November, the trustee in bankruptcy wrote to the Appellant saying that he, the trustee, was not continuing with the unfair dismissal proceedings.
6. In a decision promulgated on 7^th December 2000, which appears to have been dealt with administratively and without a hearing, the Tribunal dismissed the Appellant's claim for unfair dismissal on withdrawal by the Appellant. That decision clearly reached the Appellant by 19^th December because on that day he wrote to the Tribunal asking for a review of the decision promulgated on the 7^th on the ground that he had not withdrawn the application.
7. On 26^th January this year, the trustee in bankruptcy wrote to the Appellant advising him that in his letter of the 27^th November 2000 he had told the Appellant that he was not continuing with the application.
8. On 14^th March 2001, the Appellant went to South Africa for surgery. He did not receive correspondence from the Tribunal. He returned on 28^th March. He learnt that there was a hearing of his review on 17^th April. He wrote asking for a postponement but on 17^th April, the Tribunal continued with the Appellant's application and refused it. The Appellant says, and there is no reason to doubt this, that he was present in the building, although not at ten o' clock when the case was listed. He says this was because of the surgery he had undergone.
9. On 10^th May, the Appellant sought a review of the decision of the Tribunal to decline a review, that being promulgated on 30^th April, and on 23^rd May, the Tribunal sent its decision refusing a review of the decision made on 17^th April.
10. The only other date that I think I need to identify for the purposes of this decision is that on 27^th September of this year, the Registrar, having considered all the documentation and the relevant authorities, considered that there had been shown no exceptional reason why an appeal against the decision of 7^th December 2000 could not have been presented within the time limit laid down in the Rules. She refused an application for the extension of time in which to present the Notice of Appeal. Those are the circumstances in which this morning the Appellant seeks to persuade us that his is an arguable case for appealing the two reviews to which I have referred.
11. Ms Ellenbogen, who, if I may say so, has conducted this application with conspicuous ability, accepts that it is not open to her to challenge the Registrar's finding of 27^th September and her decision that no exceptional reason had been shown for appealing the order of 1^st December 2000 out of time and consequently, she has directed her attack at the two reviews.
12. The essence of her attack is that the Tribunal, noticeably in the decision promulgated on 30^th April, was wrong to shut out the Appellant on the basis that his trustee in bankruptcy no longer wished to continue with the proceedings. Whilst the Tribunal recognised that there were circumstances in which a Trustee could assign the cause of action of an Appellant to the Appellant bankrupt personally, the chairman took the view that that must take place prior to the application by the Trustee to an Employment Tribunal to withdraw the Applicant's claim; and the chairman stated furthermore there must be a deed of assignment, recognisable as an assignment in support of that action by the Trustee to the bankrupt. It is not for the bankrupt to assign, although it is for the bankrupt to demonstrate there has been such an assignment.
13. Ms Ellenbogen does not seek to challenge the proposition that for various statutory purposes a formal assignment by deed is necessary, but she points us both to Snell on Equity and to authority which indicates that there can be equitable assignment of such a cause of action, particularly where it relates to matters such as personal injuries or a personal chose in action in relation to employment as here. Therefore, she says those points raise an arguable point for saying that the Tribunal was wrong, and the chairman was wrong, not to review the decision, particularly when on the dates, the communication of the decision to the Appellant would have made it impossible for the transfer to have taken place before the substantive hearing. She argues that that may be very substantially unjust to the Appellant in the circumstances of this case.
14. We have come to the conclusion that there is an arguable point here and that it would be appropriate, in a case such as this, for the matter to be heard inter-parties so that the relevant issues can be canvassed, and the Employment Appeal Tribunal can form a distinct view of the case. We will, therefore, allow the appeal to go forward on that basis.
15. We think, however, that we should give the Appellant a word of warning. Although he has not (and this is in the forefront of our consideration) at this stage had a hearing on the merits, he is embarking now on a course which may well have its hazards, and we think it likely that if the Tribunal hearing the substantive appeal is against him, it may well take the view that he should pay the costs. But having said that we nonetheless take the view that there is an arguable point here and that the Appellant should have the opportunity to put it forward before the court in a full hearing. This case to be listed for category B, half a day and skeleton arguments to be exchanged 14 days before the hearing in the normal way.