Appeal No. UKEAT/0006/05/DZM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 September 2005
Judgment delivered on 28 September 2005

Before
HIS HONOUR JUDGE ANSELL
MR F MOTTURE
MRS L TINSLEY

MR I GRACE	APPELLANT

(1) BF COMPONENTS LTD
(2) BF INTERACTIVE LTD
	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR I GRACE
(the Appellant in Person)	
For the Respondent	MR PILGERSTORFER
(of Counsel)
Instructed by:
Qdos Consulting Ltd
Qdos Court
Rossendale Road
Earl Shilton
Leicestershire LE9 7LY	

SUMMARY

Unfair Dismissal: Illegality/Fraud

Employee treated as self-employed for payment of wages and tax.  Made contract potentially illegal.  Litigant in person should have been invited to make closing submissions on Polkey and illegality.

HIS HONOUR JUDGE ANSELL

1.	This is the hearing of an appeal and cross-appeal from a Brighton Employment Tribunal who, following a hearing on 29 April 2004, 7 June 2004 and 31 August 2004, in a Decision sent to the parties on 24 September 2004, determined that the Appellant, Mr Grace, was employed throughout by the First Respondent, BF Components Limited, and since he was employed for a continuous period exceeding one year, he was entitled to complain of unfair dismissal.  The Tribunal found that he had been unfairly dismissed but also found, on the Polkey principles, that had the proper procedure being followed, there would have been 100% chance of being dismissed and that dismissal would have taken one month later and accordingly, the Appellant was compensated for that one month period.  He was awarded a basic award of £260 and a compensatory award of £1,792 and the Tribunal also awarded £145.36 in respect of a commission claim.  

2.	Whilst there is no appeal against the Tribunal’s preliminary findings in respect of the identity of the employer and the length of service, some of the findings on those issues are relevant for the determination of both the appeal and cross-appeal.  

3.	There was no doubt that the Appellant’s work with the Respondent group of companies had begun on 24 June 2002 and there was no dispute that as from 15 September 2003, the Appellant had been an employee.  The Appellant maintained that, at all stages, he was employed by the First Respondents, BF Components Ltd (“Components”).  The Respondents contended that he had been self-employed prior to 13 September 2003 and his relationship on a self-employed basis had been with Components but thereafter, he had been employed by the Second Respondents, BF Interactive Limited (“Interactive”).

4.	The Tribunal found that both Respondent companies were engaged in the production and sale of visual display equipment.  Originally, they were more concerned with components, but over a period, they were moving towards the sale of finished products.  The First Respondent was based in Haywards Heath where the Appellant at all times worked and the Second Respondent was a shop in Shrewsbury.  His original engagement with the First Respondent was on the basis of a daily rate of £120.  He did not receive holiday pay or sick pay but worked a fixed pattern of days, coming into the office on a regular daily basis and always using the same desk at Haywards Heath.  His business card described him as “Head of AV Sales”.  He paid his own tax and National Insurance but, from the outset of his relationship, he was regarded as an integral member of the business and the Tribunal found that he devoted himself wholly to their work.  He attended business and social functions and his work was overseen by a director, Mr Lawrence.  After 10 weeks of his initial engagement, Mr Lawrence told the Appellant that they would like to keep him on and offered him a salary of £18,000 per annum plus commission, but the Appellant did not accept this, preferring to retain the system of being paid £120 per day.  

5.	In August 2003, there were further discussions over the future of his employment.  According to the Appellant, he was told that the group were liable for his tax and National Insurance since, to all intents and purposes, he would be regarded as an employee by the Inland Revenue and therefore, the group wished to “put him on the books”.  Initially, he refused that suggestion but eventually, he states, that under protest because he was faced with losing his employment, he signed employment particulars with the Second Respondent, Interactive, who was stated to be his employer.  His job was described as “Sales and Product Specialist, BF Interactive” although, in fact, the substance of his job remained the same.  He was paid a salary of £25,000 per annum together with a commission for the final quarter of 2003.  

6.	The Tribunal, analysing – they described it “the reality of the situation” concluded that he had been an employee at all stages from June 2002 to September 2003 and therefore had the necessary continuity in order to claim unfair dismissal.  Although the Respondents accepted that even if he was employed from September 2003 by the Second Respondent, there would have been continuity because both the First and Second Respondents were associated employers.  However, the Tribunal, again analysing all of the facts put before them and finding it significant that at no stage were any documents in the name of Interactive, other than the original statement of employment particulars, came to the conclusion that at all stages, he had been employed by Components.  

7.	The Appellant’s dismissal took place in January 2004.  On his return to work after Christmas, he was called in to meet Mr Lawrence on 8 January.  Mr Lawrence had with him the Appellant’s figures for the fourth quarter of 2003, which the Appellant alleged completely misrepresented his sales performance.  The Respondents believed that his employment had only begun in September 2003 and therefore he was not entitled to any consultation over his dismissal and, as a result, Mr Lawrence told the Appellant that they were going to terminate his employment.  He did not give him any reason for the termination but after discussion, it was agreed that the real reason for the dismissal was redundancy and Mr Lawrence signed a certificate confirming the reason for dismissal as redundancy on the Appellant’s claim form for an insurance policy that he had.  The Appellant left work on 12 January.  The Appellant alleged that he was not redundant and that his dismissal was a complete fabrication.  The Tribunal concluded in paragraph 60 that having heard evidence from Mr Lawrence and Mr Mitchell:

“We are satisfied that trading conditions did not make it viable to continue with the employment of the Applicant.  We are also satisfied that the Applicant was not replaced and that there were no other alternative positions which the Applicant could have been given”.
The Tribunal continued:
“We are therefore satisfied on this evidence the reason for the dismissal was redundancy which is a potentially fair reason for the dismissal in accordance with section 98(2) of the Employment Rights Act 1996….It is also in accordance with the Applicant’s own request that his employment protection insurance policy to be certified by Mr Lawrence”.  
The Tribunal however found that there was absolutely no consultation about the dismissal resulting from the misapprehension that the Appellant did not have the necessary qualifying service and therefore found that the lack of consultation warning rendered the dismissal unfair.  The Tribunal however continued at paragraph 67:
We are satisfied, on the Respondent’s evidence, that the Applicant’s position was not financially viable and that there was no other post which he could have been given and no one was recruited in his place.  The Tribunal therefore concluded on the Polkey principles that the Appellant would have had 100% chance of being dismissed, but the dismissal would have taken place one month later if consultation had taken place”.

8.	At the preliminary hearing held at this Court on 23 March, HHJ Burke QC identified the issues to go forward to this appeal as follows.  
(1)	Whether the Tribunal erroneously looked at the evidence relating to the trading conditions of Interactive who, as the Tribunal found, were not the employers, as opposed to Components who were the employers. 

(2)	Whether the Tribunal had blurred the line between incapability and redundancy and had not dealt properly with the Appellant’s case which was that the employers purported to dismiss him simply and straightforwardly because they said he did not come up to target.

(3)	That the Tribunal’s conclusions as to redundancy expressed, quite shortly, in paragraphs 60 and 67 of the Decision are not sufficient to comply with the requirements as to the giving of reasons set out in the well-known cases such as Meek v City of Birmingham District Council [1987] IRLR 250 and Tran v Greenwich Vietnam Community [2002] IRLR 735.  

(4)	As regards the Polkey issue, it was only raised at the end of the case and the Appellant did not appreciate what was going on which resulted in an injustice in that he did not make submissions on the issue.  This coupled with a further ground relating to Polkey that, on any view, a finding of 100% deduction is too high a percentage.  

9.	The cross-appeal relates to the Tribunal’s decision that the Appellant had sufficient continuous service to claim unfair dismissal and, in particular, raises the issue that in the light of the Tribunal’s finding that between June 2002 and September 2003, the Appellant was employed by Components, that employment was illegally performed in that the payment of tax on a self-employed basis instead of PAYE is sufficient, having regard to his delayed payment of tax, to render the contract of employment illegal.  Coupled with the implied misrepresentation made to the Revenue that the Appellant was not employed, the Respondent therefore contended that the time during which the contract was tainted with illegality could not count towards a continuous period of employment.  Leave for the cross-appeal to be heard at a full hearing was given by HHJ Reid QC in chambers by an Order dated 14 June 2005.

10.	For reasons that will become apparent, we propose to deal with the cross-appeal first.  

11.	On behalf of the Respondents, Mr Pilgerstorfer, submitted that the issue of the illegality of the employment contract prior to 15 September 2003 was raised orally in submissions before the Tribunal and also in the Respondents’ written submissions (see page 6), yet nowhere in the Tribunal’s Decision do they deal with the issue.  He contended that the Tribunal were bound to deal with the issue since it went to the issue of their jurisdiction i.e. if they found that the contract was tainted with illegality prior to September 2003, there would not be sufficiently long period of continuous service to provide jurisdiction for an unfair dismissal claim.  In Hyland v Barker [1985] IRLR 403, the ET held that the phrase “continuously employed” meant continuously employed under a legal contract of employed and if the contract was an illegal one and, for a period of time, was such as to affect the statutory continuity of employment, then for that period the contract could not be relied upon and the necessary continuity of legal employment was not established.

12.	As to whether the Tribunal should have dealt with the issue, Mr Grace submitted that the issue was certainly not identified within the ET3 or at the case management conference.  His general complaint in relation to the Respondents’ closing submissions is also a feature of his own appeal in relation to the Polkey issue.  He submitted before us that the submissions were read to the Tribunal very quickly, that he did not appreciate the significance of the illegality issue and was not invited to comment upon it by the Chairman.  We shall comment further on this aspect below but we are satisfied that the illegality issue was raised by the Respondents and once the Tribunal found that there was employment rather than self-employment with Components from 2002, it was incumbent upon them to deal with the illegality issue.  

13.	Mr Pilgerstorfer further argued that rather than sending this matter back to the same or a fresh Tribunal for consideration that we should make a finding of illegality based on the facts and conclusions formed by the Tribunal.  Mr Pilgerstorfer took us firstly to the leading authority on illegal contracts of employment Hall v Woolston Hall Leisure Ltd [2000] IRLR 578 where, at paragraph 30, Peter Gibson LJ analysed the three categories of illegality cases.  

“30.	In two types of case it is well-established that illegality renders a contract unenforceable from the outset. One is where the contract is entered into with the intention of committing an illegal act; the other is where the contract is expressly or implicitly prohibited by statute (St. John Shipping Corp. v Joseph Rank Ltd. [1957] 1 Q.B. 267 at p. 283 per Devlin J.)

31.	In a third category of cases a party may be prevented from enforcing it. That is where a contract, lawful when made, is illegally performed and the party knowingly participated in that illegal performance. In Ashmore, Benson Ltd. v Dawson Ltd [1973] 1 WLR. 828 Lord Denning M.R. (at p. 833) said:
‘Not only did [the plaintiff's transport manager] know of the illegality. He participated in it by sanctioning the loading of the vehicle with a load in excess of the regulations. That participation in the illegal performance of the contract debars [the plaintiff] from suing [the defendant] on it or suing [the defendant] for negligence.  So too Scarman L.J. (at p. 836): "But knowledge by itself is not enough. There must be knowledge plus participation .... For those reasons I think the performance was illegal’.

32.	In the employment law field the test of knowledge plus participation has also been recognised for illegality to be a defence. Thus in Davidson v Pillay [1979] IRLR. 275 Slynn J., giving the judgment of the EAT, referred to Tomlinson v Dick Evans "U" Drive Ltd [1978] IRLR. 77 as a case where the employer and employee were parties to a deliberate fraud on the Revenue and the employee could not rely upon an illegal contract. He said (at p. 77 para 3):
‘We follow and accept the decision in that case as properly stating the law where both the employer and employee are a party to the illegality and have knowledge of it.’"

Later at paragraph 38 he said this:
“38.	With all respect to the Judge, his view of the unfair dismissal cases is an over-simplified one. In cases where the contract of employment is neither entered into for an illegal purpose nor prohibited by statute, the illegal performance of the contract will not render the contract unenforceable unless in addition to knowledge of the facts which make the performance illegal the employee actively participates in the illegal performance. It is a question of fact in each case whether there has been a sufficient degree of participation by the employee”.
Mr Pilgerstorfer therefore submitted that what was required was knowledge plus participation.  Does there have been knowledge on the part of the employee that the conduct was illegal or merely knowledge of the facts which make the performance illegal?  In Salvesen v Simons [1994] IRLR 52 an EAT decision which was cited with approval by Peter Gibson LJ in the Hall case, the EAT held that it was not necessary for the employee to know that the conduct itself was illegal, knowledge of the facts giving rise to the illegality was sufficient.  Although the employee in that case was innocent of deliberate illegality, he had knowingly participated in the illegal acts by having suggested the arrangement.  The facts of Salvesen bear some resemblance to this case in that the employee was a farm manager and that his request, his remuneration of £12,000 a year was split into two parts: £10,000 as a salary, subject to normal insurance and tax deductions and the balance of £2,200 payable as a management figure without deductions to Jonor Services, which was a partnership which he operated with this wife, which owned and obtained income from certain properties and also provided a farming consultancy service.  Lord Coulsfield, giving the judgment of the EAT, referred to the fact that the effect of the arrangement was not to take the remuneration out of a charge tax altogether, but merely to transfer it or attempt to transfer it to Schedule D, coupled with the misrepresentation, Jonor Services were providing any formal consideration to the employers.  

14.	In our case, Mr Pilgerstorfer submitted that the illegality was two-fold: primarily that payment of tax under Schedule D is on a delayed basis, rather than on weekly or monthly deduction under Schedule E, coupled with the possibility for the employee in setting off expenses, if taxed under Schedule D, coupled with the implied misrepresentation to the Revenue, that relevant time he was indeed self-employed.  Mr Pilgerstorfer submitted that Mr Grace clearly satisfied the two requirements namely knowledge of the facts giving rise to the illegality and participation, pointing to the findings by the Tribunal that despite two requests by the employers, he opted to remain self-employed paying his own tax and National Insurance even after August 2003 when he was told that the Revenue would treat him as an employee.  Further, he sent out invoices in respect of his weekly fee and completed his own tax return.

15.	Mr Grace referred to a passage in the more recent decision of Colen & Another v Cebrian (UK) Limited [2004] IRLR 210 where, at paragraph 19, Waller LJ said thus:  
“It furthermore seems to me that to place the burden of proof where they did was fundamentally wrong where illegality is being alleged. The burden was on Cebrian (UK) to show that they and the Colens and indeed the Percivals had either made a contract with the object of defrauding the revenue, or had performed it with that objective or in a way which did defraud the revenue. That would have involved proving that the Colens varied the arrangement in 1988 so as to exclude AC from any share in the commission, and that MC had then with Cebrian (UK) decided to continue to pay her in order to defraud the Revenue. Why, one asks, should they have done such a thing if the prior arrangement worked perfectly well?”

Mr Grace invited us to focus on the phrase “performed it with that objective”, submitting that there was no evidence before the Tribunal that it was performed with an illegal objective.  However, we referred him to the third possibility raised by Waller LJ which was that it was performed “in a way which did defraud the Revenue” which would appear to confirm the submissions made by Mr Pilgerstorfer that the only knowledge required was that of the facts which gave rise to the illegality rather than the knowledge of the illegality itself.  

16.	It seems to us that Mr Pilgerstorfer has presented a very strong argument that the contract prior to September 2003 was tainted with illegality.  The only reservation that we have in dealing with the matter ourselves rather than sending it back to a tribunal relates to the issue of what opportunity was given to Mr Grace to make submissions on the matter before the Tribunal?  We shall consider this issue below when dealing with the Polkey issue.
Redundancy
17.	The Appellant contends that the Respondents presented evidence of dismissal and of a redundancy situation relating to Interactive and that the Tribunal’s findings that the Appellant was employed by Components made this evidence largely irrelevant.  

18.	It is perhaps unfortunate that the Tribunal did not remind themselves of the statutory provisions concerning redundancy.  Section 139 of the Employment Rights Act 1996 provides that:
“139. - (1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to- 
(a) the fact that his employer has ceased or intends to cease- 
	(i) to carry on the business for the purposes of which the employee was employed by him, or
	(ii) to carry on that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business- 
	(i) for employees to carry out work of a particular kind, or
	(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish.
(2) For the purposes of subsection (1) the business of the employer together with the business or businesses of his associated employers shall be treated as one (unless either of the conditions specified in paragraphs (a) and (b) of that subsection would be satisfied without so treating them)”.

19.	Mr Pilgerstorfer submitted that by virtue of subsection 2, the Tribunal, in considering whether the requirements of the business has ceased or diminished, are entitled to take into account not only the business of the employer, but also the business of any associated employers in view of the Tribunal’s finding that the First and Second Respondents were associated employers.

20.	We also remind ourselves that the correct approach for the Tribunal to have followed in determining whether redundancy was the reason for dismissal was the three stage process identified in Safeway Store Plc v Burrell [1997] IRLR 200 as approved by the House of Lords in Murray v Foyle Meats Ltd [1999] IRLR 562 namely: (a) was Mr Grace dismissed?  If so, (b) had the requirements of the business for employees to carry out work of a particular kind ceased or diminished or expected to cease or diminish?  If so, (c) was Mr Grace’s dismissal wholly or mainly the result of by the state of the affairs identified at (b)?  

21.	The amended Grounds of Appeal that were drafted by Counsel, Mr Lawson, on behalf of the Appellant sets out paragraph 9 extracts from Mr Lawrence’s statement which, it is contended, clearly indicate that the Respondent’s decisions were based on the Appellant’s performance as a sales representative for Interactive.  For example, in paragraph 15 of Mr Lawrence’s statement, he says thus:
“It was clear to BF Interactive in early January 2004, from the invoices received, that the sales generated by the Applicant in his position [which was early stated by the witness to be with Interactive] were not covering the costs of employing him”.

The grounds contended that it was hardly surprising that the witnesses were concentrating on Interactive since it was, of course, their case that since September 2003, he had been employed by Interactive.  The grounds further contend that, as a result of the concentration on Interactive, the Tribunal made no assessment as to whether the actual employer, Components, was able to establish a redundancy situation.

22.	Before us the Appellant contended that, as far as he was concerned, his previous role with Components had not changed and he regarded himself as still working for Components, working out of their premises at Haywards Heath.  In the event, he contended that the Tribunal made no proper analysis of what work he was carrying out for Components and thus, whether were the requirements of the business for employers to carry out that work had ceased or diminished.  He contended that it was particularly important to carry out this analysis in respect of Components who, he alleged, at the relevant time employed at least one other sales person.  The Appellant, in particular, pointed to a finding at paragraph 35 of the decision where the Tribunal concluded that he had continued his work in exactly the same way as he had done “hitherto” but from 15 September 2003, he was paid under the PAYE scheme.  The Tribunal had made a finding earlier on at paragraph 14 that the Appellant’s earlier relationship had been with Components.  

23.	The Appellant also contrasted the way the case was pleaded in the ET3 on behalf of the Respondents, namely:
“The Second Respondent decided to withdraw from product management and reorganised business to business sales to its northern showroom in Shrewsbury.  The Second Respondent took all the appropriate steps to consult with the employee, to consider alternatives to the dismissal and to offer alternative employment to the Applicant.  The Second Respondent and its sister company, BF Components Limited, the First Respondent did not have any vacancies at that time”
as opposed to Mr Lawrence’s statement where he set out the position thus:
“The reason for his dismissal was redundancy.  The sales were not forthcoming and costs need to be cut.  A change of strategy was called for as the medium to long term business opportunities were not evident to continue on this line.  At the commencement of employment, with the Second Respondent, it was made very clear that at least 5 to 10 solid opportunities would need to be in-house.  I considered whether or not the Applicant’s performance in the new role was grounds to consider terminating his employment as he was certainly not achieving the sales called for to cover the costs of his position but in the end, it was decided that his position was redundant….The position has not been replaced and BF Interactive was losing money”.

24.	In conclusion, the Appellant contended that there was no examination by the Tribunal of the correct test for redundancy.  There was no assessment of the businesses in the group and in relation to each business what work the Appellant was carrying out.  

25.	In response, Mr Pilgerstorfer argued that Messrs Lawrence and Mitchell, who gave evidence, were directors of both companies together with Mr Barber who was the group accountant and he contended that it was not correct to say that the evidence was given only on behalf or in relation to Interactive.  He referred us to the numerous occasions within the Tribunal’s Decision where the Tribunal referred to there being a group of companies.  He argued that when the Tribunal referred to their being satisfied that the trading conditions did not make it viable to continue with the Appellant’s employment, it could be inferred from the fact that they heard from both Mr Lawrence and Mr Mitchell that they were referring not only to the conditions in Interactive, but effectively within the group including Components.  He contended that that conclusion was justified on the basis of the following pieces of evidence before the Tribunal.  (1) The Tribunal appreciated that Components was the Appellant’s employer at the time of his dismissal. (2) The Tribunal accepted as a fact that there had been concerns and queries expressed to the Appellant about levels of business (see paragraph 51). (3) The Tribunal found as a fact that Mr Lawrence and the Appellant had agreed that the real reason for dismissal was redundancy.  (4) Although the Tribunal found that the Appellant had a contract of employment with Components, the evidence before the Tribunal was that he undertook the significant sales work for Interactive and that as a group, they were moving away from the sale of components and more towards the sale of finished products.  (5) The performance of Interactive was therefore very relevant to the requirements of the business for employees doing the work that the Appellant was performing.  (6) It was clear from Mr Lawrence’s evidence to the Tribunal that he was considering the Appellant in the context of a group as a whole.  

26.	Having analysed these submissions carefully, we are not satisfied that the Tribunal have dealt adequately with the issue of redundancy.  Whilst in their findings the Tribunal had concluded that essentially there was no difference in the Appellant’s work pre and post September 2003, we accept that the evidence presented to them in terms of the Appellant’s sales concentrated almost exclusively on his work for Interactive and failed to make any proper analysis of whether he was still working for Components as he had done prior to September 2003 and if so, whether the requirements of that work had ceased or diminished.  In our view, it was incumbent upon the Tribunal firstly to define redundancy, then to set out the elements that were required to be proved by the employers and to analyse those requirements in relation to both Interactive and Components since the case, as eventually presented to the Tribunal, appears to suggest that at times he was working for both companies.  

Targets
27.	A major issue before the Tribunal was whether the Appellant’s sales figures showed that he was, in fact, failing to reach his targets.  The Appellant contended that this issue was relevant to the reason for dismissal and also his commission claim.

28.	The Notice of Appeal contended that the finding of redundancy was only sustainable if it could be shown that the Appellant was, in fact, failing to meet targets since the Respondents had maintained that the dismissal was due to poor sales.  The Notice of Appeal contended that there was no conclusion by the Tribunal as to the Appellant’s sales performance or as to what the employer could reasonably have concluded about his sales, although they did conclude that commission was due to be paid to him for exceeding targets.  

29.	In a review decision, the Tribunal concluded that whether or not he had met certain targets during the last quarter of 2003 was a separate issue from whether he was redundant or not and whether his position was financially viable.  

30.	We accept that the Respondent’s evidence clearly pointed to his poor sales performance for Interactive as being the catalyst for the discussion that took place about his future.  Mr Lawrence’s witness statement, paragraph 15, states the position thus:
“It was clear to BF Interactive in early January 2004 from the invoices received that the sales generated by the Applicant in his position were not covering the cost of employing him.  We therefore considered whether or not to terminate the Applicant’s employment”.  
It seems to us that the Tribunal were entitled to accept that evidence as being the basis for any further discussion in relation to his Interactive role although, as we have indicated above, his role within Components should have been examined.  However, since the issue of the targets and billings was very much before the Tribunal and the Appellant’s poor performance was very much at the heart of the decision that these employers took, it seemed to us that it was incumbent upon the Tribunal to make some finding as to whether or not the employer’s belief in relation to the poor performance was a reasonable conclusion for them to have come to in early 2004.  

Polkey
31.	This part of the appeal relates to the alleged injustice in the Chairman failing to invite the Appellant, who was appearing in person, to make submissions on Polkey, particularly as it transpired when the Tribunal decided to make 100% contribution.  The Appellant also criticised that deduction on the basis that since the unfairness found by the Tribunal related to the complete absence of consultation and warning, no Tribunal could come to a conclusion that there was no possibility proper of warning and consultation having any effect on the outcome of the initial decision that had been taken.

32.	The manner in which the Tribunal dealt with Polkey and, indeed, the issue of illegality was that on the last day of the hearing, and for the first time, both Polkey and illegality were raised by the Respondent in their written submissions.  The case had been heard on three days over four months.  The Notice of Appeal highlighted that the parties and the Tribunal had had to contend with two preliminary issues claimed for unfair dismissal, the assessment of quantum for statutory compensation rules for reducing such compensation, the claim for unpaid commission and in part, claims for holiday pay, pay in lieu and other contract claims and contended that it was a lengthy and complex case for an unqualified person to present.  It appears that the written submissions were delivered orally at the conclusion of the case, having been agreed that the Appellant would be able to make submissions after the Respondent.  The Appellant contended that he did not understand what was being read out as regards Polkey or, indeed, illegality.  Thereafter he made submissions but failed to deal with either issue.  

33.	The Tribunal’s review letter alleged that it was quite clear from the Respondent’s submissions that the Tribunal was being asked to consider the Polkey reduction.  Although it did not explicitly deal with the issue, one presumes that they would say the same about illegality save that the Tribunal themselves do not appear to have appreciated its significance, and ignored it in their decision.  The review decision concluded: 
“The Claimant was aware of the significance of the Polkey reduction from the Respondent’s submissions but chose not to deal with that particular matter in his submissions to the Tribunal.  There was no question of him being denied the right to be heard about the Polkey reduction and it was quite clear from the Respondent’s submissions that it was going to be an issue which would have to be considered by the Tribunal”.

34.	On this issue, we were referred to an EAT decision Market Force UK Ltd v Mr A Hunt EAT/393/01 when Mr Recorder Langstaff QC giving the judgment of the Court said this at paragraph 24:
“Accordingly we consider that where a Tribunal has before it a case in which it is considering reaching a decision that a dismissal is unfair upon procedural grounds, then unless it has given an opportunity to the parties, which is clear in its terms, to address them as to that aspect of the case before retiring, it should raise with the parties the possibility that submissions may make a difference to the determination before proceeding to place a figure upon it.  It may be that they will have to consider whether or not to admit further evidence and will at that stage take account of the guidance given by King v. Eaton Ltd.  However we do not think that the Tribunal is entitled to resolve an issue in the absence of submissions by the parties, where that issue is of fundamental importance to the amount of compensation which is, after all, what the case is principally about”.

35.	Whilst we have no wish to lay down hard and fast rules for tribunals, it seems to us that in the circumstances of this case, particularly where the issues of Polkey and illegality had been raised at a very late stage and where both issues had the potential of making a considerable difference to the outcome of the case, it seems to us that it was incumbent upon this Chairman to at least invite the Appellant, a litigant in person, to make submissions on those two issues and his failure so to do does seem to us to leave the Appellant, rightly so, with a sense of injustice.  Whether or not those submissions would have made any difference is not for us to say.  We can see how the Tribunal arrived at the decision they did, based however on a very narrow view of merely considering the position of Interactive.  To say however that consultation would have made absolutely no difference to the Appellant’s position within the group of companies may be a difficult one to justify.  

36.	In conclusion, therefore, it appears to us that the only sensible course is for the matter to be remitted to a fresh Tribunal for considerations of the issues relating to redundancy, Polkey and illegality.