United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW HOGARTH (of Counsel) Instructed by: O.H. Parsons & Partners Sovereign House 212-224 Shaftsbury Avenue London WC2H 8PR


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This is the Preliminary Hearing of an appeal by the Applicant, Mr Sutton, in respect of the dismissal of his claim against Potting Construction Ltd, by the Employment Tribunal sitting at London (South).
2. We have given permission for the appeal to proceed, in respect of the holiday pay argument, and indeed that it be listed together with two other pending cases raising the same or similar points, as Category A. We have also given leave for him to proceed in respect of his appeal against the conclusion by the Employment Tribunal, that he was not an employee, save on the perversity grounds set out in 6 (ii) (a) and (b); although in relation to that aspect there is obviously the prospect of a finding by the Appeal Tribunal that, even if the arguments of the Appellant are right that the Tribunal did not deal with appropriately with the authorities, nevertheless the Tribunal's decision was correct.
3. However, the reason that we are delivering this short judgment is because in Mr Hogarth's Skeleton Argument at paragraphs 4 to 6 there has been raised a point which was not raised in the Originating Application, not argued below and not included in his Notice of Appeal, namely that, even on the findings of the Employment Tribunal that there was here self-employment and not employment, there would be a claim under what used to be called the 'Wages Act', in respect of deduction of wages for an alleged notice period, even if there was not a contract of employment, because of the wider definition of 'worker' for the purposes of a Wages Act claim.
4. We do not give any encouragement to the prospect that this application for leave to amend will succeed, given the history of previous overlooking of the point – if that is what it was – to which we have referred, but we have not today dismissed the application; we have adjourned it so that it can be considered on the full appeal with the input of argument from the Respondents.
5. If permission to amend were given at the full appeal, no fresh evidence would be required and Mr Hogarth submits that it would be the consequence of the conclusion by the Tribunal which we have. That may be right. It may on the other hand be that there could still be an argument for the Respondent that, as Mr Hogarth has anticipated, the Chairman assumed that no notice was required if the workmen were self-employed, and that that assumption was correct.
6. All matters would be open if leave to amend were granted but, as we have indicated, we give no encouragement to the prospect that it is to be granted; we simply, at this stage, do not adjudicate on Mr Hogarth's application.