Appeal No. EAT/1290/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 May 2001

Before
MRS RECORDER COX QC
MR B M WARMAN
MR R SANDERSON OBE

DR O E MOHAMMED	APPELLANT

MRS L HAYES	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR DAVID GRIFFITHS JONES QC
(of Counsel)
Appearing under the 
Employment Law Appeal 
Advice Scheme

MISS RECORDER COX QC

1	This is an appeal by way of a preliminary hearing from the decision of an Employment Tribunal sitting at Carlisle, promulgated on 3 October 2000.  The Employment Tribunal hearing in fact took place on 14 July on a preliminary issue, concerning continuous employment, for the purposes of the Applicant’s unfair dismissal claim.  

2	The Applicant (now Respondent to this appeal) was a part-time practice nurse employed at the Appellant’s surgery, who was dismissed on 15 December 1999 with four weeks notice.  

3	The Decision was originally sent to the parties, promulgated on 25 August.  There was an error in the recording of the Reasons for the Decision and by a Certificate of Correction under Rules of Procedure, a Decision with Extended Reasons was then promulgated on 3 October, and sent to the parties.  

4	The case had originally been listed on 14 July for a full hearing of the Respondent’s complaint of unfair dismissal.  However, the Appellant employer, having informed the Tribunal that there was a dispute as to the Applicant’s length of service and continuous employment, the Employment Tribunal converted those proceedings into a hearing of this preliminary issue. 

5	It appears that at that hearing the Respondent was represented.  She gave evidence, and her husband and one other witness were called.  The Appellant represented himself, gave evidence himself and called two witnesses on his behalf.  

6	This morning Mr Griffiths Jones QC has taken us through the Tribunal’s findings of fact. The Appellant’s Notice of Appeal originally contained four grounds, which were then developed in Further Particulars.  There have also been a considerable number of letters and documents sent to the Employment Tribunal by the Appellant, all of which we have had regard to.  The matter appears before us today with the Appellant having the benefit of assistance from Mr Griffiths Jones QC, appearing on his behalf under the ELAAS scheme.

7	As a result the Appellant now seeks to pursue an appeal based on amended grounds.  These amended grounds of appeal, it is submitted, should replace all the grounds presently in the Notice of Appeal.  There are now said to be four errors of law made by the Employment Tribunal in arriving at their Decision in this case.  

8	The first and the most fundamental ground is that the Tribunal erred in law in failing to direct itself as to the requirements for determining the period of the Respondent’s continuous employment under Sections 210 - 212 of the Employment Rights Act 1996 and/or, secondly, in failing to provide adequate reasons for its Decision that the Respondent was continuously employed for a period of not less than one year, ending with the effective date of termination.  

9	There are then a number of Particulars which go to that fundamental ground,  all of which persuade us that it is arguable that the Employment Tribunal did err in the ways identified.  They do not find for example, whether on 8 January 1999 the Respondent to this appeal was employed under a contract of employment, or some other arrangement; nor do they find whether in fact she worked at all between 8 January and 5 February.  At no stage in their Reasons do they go through the process on a week by week basis, in order to arrive at a conclusion as to whether or not there was continuous employment.

10	We therefore take the view that that is an arguable point for a full appeal.  Further, in relation to the remaining three grounds, we consider that these too raise arguable points which should proceed to a full hearing.

11	In relation to the final point, (ground four) we note only this.  This point raises a question as to whether or not the Respondent’s representative presented submissions or evidence to the Tribunal on 2 August, when the Appellant, was not present.  It may well be that there is an entirely innocent explanation for that matter, but we are unable, on the material before us today at this preliminary hearing to make an assessment as to that.  The matter can therefore only be resolved at a full hearing. 

Now, can I ask you please to give me assistance as to what directions, if any, you consider to be appropriate in this case?  I have in mind particularly the final ground four, and whether or not you consider that there should be any further documentation before the EAT.  

So far as the final ground is concerned, yes, well I have no doubt that Mr Gardner, presuming he remains the representative of the Respondent to the appeal will make the position clear if his letters on which the ground is founded…..so I would not have thought it is necessary to make any formal direction as to that, either he will say “Well, I made a mistake in my letters” or he won’t.  Equally, although there is, in one of the grounds, a reference to perversity, it is not the sort of case, I would not have thought at the moment, where it would be appropriate to order the Chairman’s Notes, it is a ground that either stands or falls on its own …….yes indeed …
Well that is the other question I have for you.  It does not seem to me, looking at the grounds, that this is a case where production of the notes is required.  Even in relation to ground two, as you say, it is a point which stands or falls on its own really, and can be made on the basis of the evidence that clearly was in front of them at the time.
Yes, indeed ….
In that case then, there will be an Order that the Notice of Appeal be amended to reflect the amended grounds of appeal, which are meant to replace all the original grounds of appeal.