United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0536/13/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

                                                                                                             At the Tribunal

                                                                                                             On 13 October 2015

Before

HIS HONOUR JUDGE PETER CLARK

(SITTING ALONE)

DR M SUHAIL                                                                                                        APPELLANT

(1) BARKING HAVERING & REDBRIDGE UNIVERSITY HOSPITALS

NHS TRUST

(2) PARTNERSHIP OF EAST LONDON CO-OPERATIVE                          RESPONDENTS

Transcript of Proceedings

JUDGMENT

REVIEW APPLICATION

APPEARANCES

SUMMARY

PRACTICE AND PROCEDURE - Review

One finding in the EAT Judgment revoked.  Issue remitted to a fresh Employment Tribunal.

HIS HONOUR JUDGE PETER CLARK

1.                  This appeal came before me for a Full Hearing on 14 April 2015.  It was an appeal by Dr Suhail, the Claimant before the East London Employment Tribunal, against the Reserved Judgment of Employment Judge Major, now deceased, promulgated with Reasons on 6 March 2013, dismissing the Claimant’s claims brought against the Respondents (1) Barking Havering & Redbridge University Hospitals NHS Trust and (2) Partnership of East London Co-operative (“PELC”) on the jurisdictional basis that he was neither an employee nor a worker under the Employment Rights Act 1996 (“ERA”) for the purposes of bringing whistleblowing claims against either or both Respondents.

2.                  Prior to that appeal hearing I gave a direction on paper seal dated 20 January 2015 for the Employment Judge’s notes of all three parties’ closing submissions to be provided to the parties.  Following that Full Hearing I reserved Judgment and handed down my Judgment in writing on 11 June.  Having rejected the Claimant’s case that he was a limb (b) worker under section 230(3)(b) ERA (see transcript, paragraphs 19 to 31), I turned my attention to the extended definition of “worker” under section 43K ERA.  An argument based on section 43K(1)(b)(a) was rejected by Employment Judge Major (see his Reasons, paragraph 11).  An issue arose before me as to whether the Claimant abandoned or withdrew an alternative argument under section 43K(1)(a)(i) and (ii) against either or both Respondents.  I was satisfied based on the Judge’s notes of closing submissions, supported by notes taken by both counsel below (Miss Cowen for the First Respondent and Mr Edge for the Second Respondent) that the Claimant expressly abandoned that contention as against the Second Respondent (see transcript, paragraphs 37 to 39).

3.                  I was not so satisfied in relation to the First Respondent.  As to that Respondent, I concluded on the material before me that although not expressly abandoned by the Claimant, then representing himself, he had implicitly withdrawn the section 43K(1)(a) argument against the First Respondent (see transcript, paragraphs 40 to 44).  I cited the approach of the Court of Appeal in Mensah v East Hertfordshire NHS Trust [1998] IRLR 531, raised with counsel during argument, in support of my conclusion on this aspect of the case.

4.                  Following release of my Judgment, the Claimant promptly applied for a review of the Judgment under Rule 33(1) of the Employment Appeal Tribunal Rules 1993 in relation to my finding of an implicit withdrawal of the section 43K(1)(a) argument as against the First Respondent.  That application was opposed by the First Respondent.

5.                  Having considered the rival submissions on paper, I formed the view that an oral review hearing was necessary and so directed by an order dated 8 July 2015.  I identified two questions to be decided at the Review Hearing: first, whether I should revoke my finding of implicit withdrawal by the Claimant of the section 43K(1)(a) contention against the First Respondent; and secondly, if so, whether the substantive question as to whether the Claimant enjoyed extended worker status under that provision could be determined by me or whether remission to an Employment Tribunal was necessary.  This is the oral review hearing.

6.                  I begin with some general observations about the EAT’s power to review on the interests of justice ground under Rule 33(1)(c) by reference to the helpful summary of the principles to be found in the Judgment of HHJ Hand QC in Zinda v Governing Body of Barn Hill Community High School [2011] ICR 174 at paragraph 47.  First, reviews by the EAT will be rare.  That accords with my own experience as this is the first time in 20 years sitting in this Tribunal that I have found it necessary to hold a Review Hearing.  Secondly, the underlying purpose of the review is to correct a mistake that has been made.  It is not an appeal against my earlier decision, but cases can arise where it is preferable for the EAT to conduct a review rather than require the Applicant for a review to pursue the matter by way of an appeal with permission to the Court of Appeal.

7.                  I noted (transcript, paragraphs 34 to 35) that the section 43K(1)(a) contention was included in the agreed list of issues and raised at paragraph 9 of the Claimant’s skeleton argument below.  Did he expressly or impliedly then withdraw the point as against the First Respondent, as I have found he did expressly in closing, as against the Second Respondent?  First, I was not satisfied that he expressly abandoned the point as against the First Respondent.  Was I mistaken in concluding that he had impliedly abandoned the point against the First Respondent?  Certainly, Employment Judge Major made no mention of section 43K(1)(a) in his reasons for dismissing the Claimant’s whistleblowing claims against both Respondents.

8.                  Dr Suhail so submits.  He draws particular attention to Employment Judge Major’s notes of closing submissions by Miss Cowen on behalf of the First Respondent and his response thereto.

9.                  In her submissions Miss Cowen, as recorded by the Judge, referred to the section 43K extension; that is, the extension to the meaning of “worker” under section 230(3) ERA.  She referred to subsection (a)(i); I set out section 43K(1)(a) at paragraph 41 of my Judgment and will not repeat it here.  Her submission is recorded as:

“(a)(ii) ONEL determined the work via PELC”

Unpacking that cryptic note, “ONEL” stands for “Outer North-East London” and is a provider of services; PELC is the Second Respondent.

10.              Miss Cowen continued as recorded by the Judge:

“ONEL if anybody responsible for C’s work - self-employed contractor through PELC”

She then added:

“Other work carried out at premises not run by [First Respondent]”

11.              From this passage I accept, as Dr Suhail submits, that Miss Cowen was submitting that Dr Suhail’s services were supplied through the agency of the Second Respondent not to the First Respondent so as to bring him within the purview of that Respondent but to a separate entity, ONEL.  That has been, and remains, the First Respondent’s case.  However, it is clear to me, on reflection, that Miss Cowen was addressing the section 43K(1)(a) question, among others, in her closing submissions below.

12.              Did the Claimant then abandon the point as against the First Respondent?  Dr Suhail has taken me to the Judge’s note of his response to Miss Cowen’s submissions.  The Claimant then dealt separately with those advanced by Mr Edge for the Second Respondent.

13.              There is a reference to section 43K and, more specifically, “43K(i), (ii)”, which I take to be a reference to section 43K(1)(a)(i) and (ii).  The Claimant is then recorded as saying:

“Contract not important re Queens.

Designed [to] give anyone in NHS right to whistleblow.

Not sent in by third party in Watford case.”

14.              He then goes on to argue the section 43K(1)(ba) point, ultimately rejected by Employment Judge Major at paragraph 11 of his Reasons.

15.              At this Review Hearing Dr Suhail submits that the significance of those remarks was that in advancing the section 43K(1)(a) argument, he was relying on the fact that it was not necessary for him to show that he was in a contractual relationship with “Queens” - that is, the First Respondent, which was responsible for the Queen’s Hospital - and secondly, that unlike his earlier case heard originally at the Watford Tribunal (Suhail v Herts Urgent Care; see transcript, paragraphs 7 to 11) here his services were provided through the agency of the Second Respondent.  In the Watford case no agency was involved.

16.              On this basis, returning to section 43K(1)(a), it now seems to me that far from abandoning the point against the First Respondent the Claimant was arguing that he was supplied by the Second Respondent to work at the hospital for the First Respondent on terms determined not by him but by the First and/or Second Respondents.

17.              Miss Cowen submits that the matter is not as clear as that, and she points to the subsequent withdrawal of the point in relation to the Second Respondent.  She submits that the Claimant advanced no positive case in answer to her submission that the relevant players for the purposes of section 43K(1)(a) were not the First Respondent and the Second Respondent, but ONEL and the Second Respondent.

18.              I have considered those submissions, but it seems to me in fairness to Dr Suhail that the position as it now appears to me is different from the way it appeared to me when I came to write my Reserved Judgment, and the upshot is that I shall revoke the finding that he had implicitly withdrawn the section 43K(1)(a) argument against the First Respondent.

19.              That leaves the second question that I identified for this hearing: am I able to deal with the matter on its merits, or must it return to, inevitably, a fresh Employment Tribunal?  Both parties, very sensibly in light of the observations of the Court of Appeal in the case of Jafri v Lincoln College [2014] EWCA Civ 449, invite me to deal with the matter myself so that it will be unnecessary to remit the case back to the Employment Tribunal.  I have very great sympathy with that joint approach, particularly since this case has been going on since effectively May 2011.  However, having heard the submissions of both parties, I am driven to conclude that this point requires an evidential investigation, which I am not able to provide at this Appeal Tribunal.  Miss Cowen points me to two agreements between ONEL and the Second Respondent, which she submits in conjunction with witness statements provided by Ms Wheeler and Ms Niner for the hearing below inevitably mean that the Claimant will be unable to prove that it was the First Respondent who in practice determined the terms on which he was engaged to work at the hospital.

20.              I am not persuaded that that is inevitably the outcome.  I shall not rehearse the arguments advanced by the Claimant; suffice it to say that, in my judgment, this requires investigation by a fact finding Tribunal.  Accordingly, having allowed the review application, I shall remit this aspect of the case only - that is, whether or not the Claimant was a worker vis-à-vis the First Respondent within the extended definition in section 43K(1)(a) ERA - to a fresh Employment Tribunal or Employment Judge for determination.