United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MARTYN BARKLEM Of counsel APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME


 


HIS HONOUR JUDGE J McMULLEN QC

1. This case is about time limits, although a secondary issue arises as to the employee's status of the Applicant.

Proceedings

2. This is an appeal by the Applicant against the decision of an Employment Tribunal sitting in Leeds on 29 April 2002, Chairman Mr H G Forrest, promulgated with Extended Reasons on 23 May 2002. The Applicant represented himself. The Respondent was represented by a member of the Respondent Lawn Tennis Club.
3. Today the Applicant has had the advantage to be represented under the ELAAS Scheme by Mr Barklem and we are most grateful for the help which he has given in focusing attention on the relevant issues.
4. The Decision was the subject of an application for a review, which was refused by the Chairman exercising his discretion under the 2001 Rules, Rule 13 (5). No separate arguments have been addressed to us about that decision, although it is the subject of a separate Notice of Appeal. We therefore concentrate on the first appeal and formally dismiss the second appeal, it not having been argued before us today.
5. The Applicant has presented a Notice of Appeal consisting of 64 pages. We have carefully pre-read what he has said. The Applicant complained of actual and apparent bias by the Chairman. He signed the written Extended Reasons for the decision and we take it that since the members gave their judgment in this decision, the criticism of the Chairman extends to the whole Tribunal; indeed, the language of the Applicant's affidavit dealing with this matter is sufficient to illustrate that his complaint is against the Tribunal as a whole. In accordance with our procedures the Chairman has given his comments.
6. A second affidavit was also produced by a Mr Garland, which has again been the subject of a comment by the Chairman. Mr Garland, who attended the hearing, gives his opinion about what was happening but it is interesting for us to note that even this supporting evidence of the Applicant's allegation of bias includes this:

18 "The Chairman's demeanour and attitude to Mr Grimes during most of the hearing was calm, patient and amenable. However, when the Chairman delivered the decision he seemed tired and drawn. When Mr Grimes asked questions of the Chairman he was rather curt and impatient."

Whilst the Tribunal proceedings did not appear rushed, Mr Grimes had much to add in support with evidence. It seems to us that that approach of the Chairman is borne out by his own comments on the allegation of actual and apparent bias. We will return to this is due course.

The facts

7. The Applicant was engaged, to put it neutrally, by the Club as a tennis coach. He had been involved with them on two occasions in 1998 and 1999 for the summer season. He was paid three hours a week to run a junior tennis session for them on Saturday mornings. The rest of the week was free for the Applicant to develop his own coaching business, which he did under the trading name of Grand Slam Tennis School. He was free to coach club members or others and free to coach wherever he liked. But the Tribunal found that in practice he restricted his coaching to the club. He was himself a member of the club and a committee member and was heavily involved in its activities.
8. The last occasion on which he was paid for his duties occurred in September 1999. Negotiations ensued for the following season, but on 6 May 2000 the club wrote to the Applicant saying that they would not renew his contract. At that stage the Applicant received advice from a lawyer, engaged by the National Coaches Association.
9. The Tribunal found that the complaints which were before it had not been put by him to the committee. The complaints included: an allegation of deception, deliberate misrepresentation and other issues under the Public Interest Disclosure Act 1998. He also made a claim of unfair dismissal and of breach of contract. Those matters were heard before the Employment Tribunal. Previously orders had been made by a different Chairman relating to the conduct of the proceedings and nothing now turns upon those.
10. At the hearing the Applicant asserted that he had a difficulty in presenting his case because he suffered from what he defines for us as moderate depressive disorder. The Tribunal made, what in our view are, reasonable adjustments – unique, in our experience – in allowing the Applicant to present his case by PowerPoint. We have copies of the slides.
11. The Tribunal accepted his case that he was suffering from a depressive illness. The Applicant, however, presented no medical evidence and the Tribunal then decided that it was unable to make any clear finding as to the nature and extent of the illness in the absence of medical evidence.
12. The Applicant had taken advice in May 2000; and again in December 2001 he received further advice from the Disability Law Service and from a firm of solicitors.

The legal issues:

(1) Limitation

13. The Tribunal made findings in relation to two preliminary points. The first was to decide whether or not the claim the Applicant made was in time. It was presented on 15 January 2001. The Tribunal also considered whether, for the purposes of the claims under the Public Interest Disclosure Act 1998, the Applicant was a worker and, for the purposes of his claim for breach of contract and unfair dismissal, whether he was an employee. As we will point out, it was unnecessary for the Tribunal to reach decisions on the second preliminary point.
14. The primary issue, as the Tribunal determined it to be, was to decide whether or not, pursuant to section 111 of the Employment Rights Act 1996, the Applicant had presented his claim in time; that is, three months from the effective date of termination. Similar periods apply in respect of the claim for breach of contract and under section 47 of the Employment Rights Act 1996, which embodies the Public Interest Disclosure Act 1998 provisions.
15. The Tribunal therefore focused on the primary complaint about what happened in September 1999. The Tribunal decided that that was the only possible dismissal and examined therefore whether the Applicant could reasonably practicably have presented his claim before December 1999. The Tribunal decided that, notwithstanding his medical condition, he could have so presented it. It further decided that it would not extend the period in its discretion to allow the claim, made some two years, four months late, to be validated.
16. The Applicant contends before us, in submissions made by counsel and directly by the Applicant himself, that the Tribunal failed to consider the effect of his depression upon his ability, reasonably practicably, to complete the Originating Application.
17. During the course of his address to us today the Applicant has disclosed that he knew at all times there was a three-month period for the presentation of an Originating Application. Further (and this is relevant to the Applicant's criticism of the Chairman for the way he conducted the hearing), the Applicant indicated that he had been engaged in previous proceedings before an Employment Tribunal and thus his argument before us on his affidavit and in his Notice of Appeal, that he was an ingenu is rejected; it simply is not true.
18. While of course people usually do not have experience of attending an Employment Tribunal, in this case the Applicant did. Further, the Tribunal was under the misapprehension that he was attending for the first time and neither in his Notice of Appeal, nor in his affidavit where he makes direct criticisms of the Tribunal for failing to look out for his interests, does he say that he was so experienced.
19. The essential issue therefore before the Tribunal was to consider whether the Applicant's medical condition made it not reasonably practicable to present his complaint in time. In fairness, the Applicant has accepted today that he did not present medical evidence linking his mental condition with his failure to act during the three-month period.
20. That ought, to some extent, assist the Applicant in understanding the thinking of the Tribunal. As we have pointed out, the Tribunal did not have medical evidence except for the simple name of the diagnosis. What is crucial, in any allegation that mental or medical conditions preclude the presentation of an Originating Application, is evidence linking the condition with the failure.
21. In those circumstances the Tribunal found that the Applicant should have presented his claim by December 1999. Nevertheless, since the Applicant was claiming that the dismissal occurred in May 2000, when the club refused to renew, the Tribunal then looked again at that as a default position if it were wrong on its primary finding. It found against the Applicant again. He had been aware of the three-month period and had done nothing.
22. The Tribunal then looked at whether or not, when he became aware from specialist advice in December 2001, he should have presented a claim thereafter. On the hypothesis that it was wrong in its primary and secondary decisions, the Tribunal looked at whether the Applicant should have presented his claim close to December 2001 and held that even then he had not acted promptly because he did not present his Originating Application until 15 January 2002.
23. The Tribunal was required to look at its secondary finding because the claim under the Public Interest Disclosure Act 1998 relates to the decision not to renew his contract which, as we have said, took place on 6 May 2000. Applying the same formula for limitation and extension of limitation to this claim the Tribunal rejected the Applicant's case.

(2) Status

24. The Tribunal then went on to discuss and to make findings about the relationship. The second part of its decision appears to us to be unnecessary but obviously for prudence the Tribunal discharged its duty by giving a clear decision.
25. We have heard no argument today about the relationship. It seems to us that the Tribunal balanced the factors required for the assessment of whether the Applicant was a worker or an employee for and against that contention. It said, however, this:

16 "The Tribunal were most impressed by the factor that the Applicant throughout was carrying on and developing his own business, Grand Slam Tennis School, as a self-employed tennis coach. As such, he was free to pursue his clients, to coach elsewhere and to develop his business. The reality of the situation appeared to the Tribunal to be that the Saturday morning contract with the club was no different in kind from any other coaching contract he arranged. It was simply another client, the Grand Slam Tennis School in effect. The Tribunal, on balance, applying these factors decided the Applicant was not an employee. It follows that the claims for unfair dismissal and breach of contract must be dismissed on this ground as well."

26. When considering whether he was a worker, for the purpose of section 230 (3) of the Employment Rights Act 1996 the Tribunal was with the Applicant in part. Section 230 (3) says this:

"In this act, "worker"…means an individual who has entered into, or works under…

(b) any other contract…whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking undertaking carried on by the individual."

27. The Tribunal found the Applicant was giving personal service; that he was doing so by way of a business and thus he was not a worker. As we say, we have not heard arguments on that point. We are satisfied those findings of the Tribunal indicated a correct approach to the law and the application of the law to the findings which it made.

(3) Bias

28. The Applicant also contended that the Tribunal had been biased, or gave the appearance of bias. As refined today, given that the Applicant was experienced in Employment Tribunals, the sole issue relates to the alleged uneven-handedness of the Tribunal's approach to the evidence given by the Applicant.
29. His primary claim is that he had at the hearing two people who would give evidence on his behalf and yet was not able to present this evidence because the Tribunal stopped him. There is a dispute about this, as the Chairman makes clear in his comments, but the central issue appears to us to relate to what these people would say. The Applicant does not contend that either of these witnesses had anything to add to the primary issue of what was reasonably practicable for the Applicant to do in September 1999.
30. It is not therefore necessary for us to resolve this dispute, but if it were we would find that the Chairman has described his conduct of the proceedings in a way which seems to us entirely appropriate. But as a matter of practical reality, since neither of these witnesses commented upon the primary preliminary issue from the Tribunal no injustice could possibly have been caused, even if we accepted the Applicant's case. The outcome, therefore, was that the Tribunal found against the Applicant on his time point and on his status point.

Conclusion

31. We can see no error in those findings. We consider that the Applicant's appeal has no reasonable prospect of success and will not send it forward to any further hearing. The Tribunal has made clear findings on material which was available before it and has made a decision with which we are not prepared to interfere.
32. As to the second issue, it is not necessary for us, having upheld the Tribunal on the first point, to make a decision, although, as we have indicated, albeit without hearing argument, the decision appears to be correct.
33. Both appeals therefore are dismissed.
34. The Applicant sought leave to appeal on the single ground that the Tribunal made errors of fact which, as Mr Grimes, in making this application himself, says are fundamental and gross. We do not detect a point of law to be taken to the Court of Appeal with any greater prospect of success than we have held and we refuse the application.