United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R O'DAIR (of Counsel) Instructed by: Messrs Hodge Jones & Allen Solicitors 31-39 Camden Road London NW1 9LR
For the Respondents	MR M WEST (Representative) Instructed by: Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB


 


HER HONOUR JUDGE WAKEFIELD

1. This is an appeal by Ms Irene Colesby against a decision of an Employment Tribunal at London (Central) which decision was sent to the parties on 18 March 2003 and by which it was decided that her complaints of unfair dismissal, breach of contract and unauthorised deductions from wages were dismissed. Underlying the dismissal of the complaints was the Tribunal's finding that the Appellant had not been an employee of the Respondent.
2. The relevant chronology is the following. The Originating Application was presented on 26 October 2001. On the form ET1 the Appellant, who throughout the Employment Tribunal proceedings acted in person, gave the dates of her employment with the Respondent as being August 1998 to August 2001. She described her job in box 6 on the form as "Director, Salesperson, Customer Service Liaison, and General Factotum." She commenced the details of her complaint with the statement:

1 "Three other partners and myself formed a water company which employed me on a full time basis."

3. By its Notice of Appearance, the Respondent, represented from the outset by Peninsula Business Services Ltd, answered "yes" to the question "Was the Applicant dismissed" and gave as the reason for dismissal "some other substantial reason." The "yes" box on the form ET3 was also ticked to the question "Are the dates of employment given by the applicant correct?"
4. The claims were resisted by the Respondent on the basis that they were presented out of time (that is, the unfair dismissal and sex discrimination claims – that latter having been withdrawn by the Appellant) and alternatively that the dismissal was not unfair.
5. The form continued, amongst other matters with this statement:

3 "…the Respondent contends that the dismissal of the Applicant was enacted in accordance with the articles of association…"

and it also stated that:

4 "…the Applicant is not entitled to any monies in respect of the termination of her employment as alleged or at all."

6. On 8 October 2002 the Employment Tribunal held a directions hearing. A Chairman sitting alone ordered a preliminary hearing of the issue whether the complaints were presented out of time. He also ordered that witness statements on the merits of the complaints must be exchanged by the parties not later than 10 January 2003.
7. The hearing of the preliminary issue took place on 5 December 2002 before a different Chairman, this time sitting with members. Their decision was that the Tribunal had jurisdiction to determine Ms Colesby's complaints of unfair dismissal, breach of contract and unlawful deduction from wages and the proceedings were adjourned to a full merits hearing to be held on 11 to 14 February 2003.
8. The Summary Reasons include the following:

2 "At the commencement of today's hearing the Respondent conceded that the Applicant's employment extended into August 2001 and that accordingly the Originating Application presented by Ms Colesby to the Employment Tribunal on 26 October 2001 was within the statutory time limits for making such complaints to an Employment Tribunal.

3 It is evident to the Tribunal on the basis of the Applicant's statement prepared for today's hearing and supporting evidence that her case is that her employment ended in August 2001 and that fact is now conceded by the Respondent.

4 We find as a fact that the Applicant's employment terminated on Tuesday 28 August 2001."

The Reasons also added, in paragraph 8, the following:

8 In the circumstances there would appear to be no appropriate sanctions to consider in relation to the Respondent in this respect [that is, as regards their late putting in of their concession]. Nevertheless, we remind the Respondent that the directions in respect of the full merits hearing must be complied with."

9. The first witness statement of the Appellant, which ran to 102 paragraphs, was dated 8 January 2003 and served on the Respondent. On about 3 February 2003, and therefore outside the period ordered by the Tribunal, a witness statement of Mr Broomfield on behalf of the Respondent was served. In that statement Mr Broomfield raised, for the first time, and in terms that we do not know since the Respondent has not been able to make that statement available to us or to the Appellant, that the Appellant was not an employee of the Respondent.
10. The Appellant then made a further witness statement dated 6 February 2003 dealing in considerable detail with the content of Mr Broomfield's witness statement. In paragraphs 50-51 of this new witness statement, which ran in all to 55 paragraphs, the Applicant said the following:

50 "First, Mr Broomfield denies that I was an employee of the Company. However, it is clear even from his own witness statement that I was much more than just a non executive director."

and she goes on in some detail to deal with his paragraphs. Then she says in paragraph 51:

51 "In saying this I would anyway say that I was employed by the Company under a contract of employment written evidence of which has been provided to the Tribunal. I note that Mr Broomfield alleges that [and she then quotes from him presumably]

"…if Ms Colesby operated under a contract of employment, then her contract has been invalidated by her lawful actions."

11. On 6 February 2003, after the Appellant had completed that second witness statement, she was served by the Respondent with its bundle of documents, again outside the time order made by the Employment Tribunal. She then made a further witness statement dated 7 February 2003.
12. The hearing of the complaints was over the three-day period 11 to 14 February 2003 with a Chairman and panel different from those at earlier hearings. The Extended Reasons record the following:

2 "At the start of the hearing Mr Clarke [he was representing the Respondents] had made clear that the Respondent did not accept that Ms Colesby was an employee.

3 At the start of the hearing the Applicants complained that the Respondent had provided late disclosure of documents. However, although offered the option of the hearing being postponed because this failure represented a breach by the Respondent of earlier Tribunal orders, they both declined because they both wanted the matter to proceed even though it meant that they had not been able to obtain representation for themselves as a result."

I should add that there was originally a second Applicant with whom we are not now concerned.

13. The Tribunal in its decision makes no reference to the earlier decision as regards the preliminary issue. There is no suggestion that consideration was given as to whether it was, in all the circumstances, open to the Tribunal to consider the issue of employee status, nor, if it was, whether the Appellant, still unrepresented, should have been informed of the potential significance of this issue to her claim and offered an adjournment in order to take legal advice.
14. On the third day of the hearing submissions were apparently made by both sides and the Respondent's representative referred to a number of authorities as regards employee status, copies of which were given at that time to the Appellant.
15. The Tribunal, having set out the evidence, their findings of fact and their analysis of the law, concluded that the Appellant was not an employee and they dismissed her applications.
16. This appeal has three potential limbs. Firstly, that the Employment Tribunal had no jurisdiction to determine at the merits hearing the issue of employee status, since that had been determined at the hearing of the preliminary issue. Secondly, that, even if the Employment Tribunal has jurisdiction to decide whether or not the Appellant was an employee, it was wrong and an abuse of process to allow the Respondent to raise and to argue that issue at so late a stage and without consideration of whether a formal amendment of the ET3 was necessary and without allowing an adjournment to the Appellant to meet the issue. Thirdly, that the decision that the Appellant was not an employee was contrary to the evidence, perverse and wrong in law.
17. In order to determine this appeal we need go no further than the first of these propositions. The Respondent has argued before us that there is no issue estoppel since at the time of the hearing of the preliminary issue there was no consideration of the question of employee status since no such question had been raised by that stage. It is argued that that hearing determined solely the question as to time limits, without impacting on any issue as to employment status.
18. We disagree. It is quite clear from the decision, following the preliminary hearing, that the Respondent conceded that the Appellant had been in their employment. On the basis of that concession the Employment Tribunal made a finding that the employment terminated on 28 August 2001. At the merits hearing the Employment Tribunal was estopped from re-opening that issue.
19. The question of the merits of the Appellant's claims as regards unfair dismissal, breach of contract and unauthorised deductions is therefore remitted to be reheard by a newly-constituted Tribunal. This appeal is allowed.