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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Kennaugh v David Lloyd-Jones (t/a Cheshire Tree Surgeons) [2006] UKEAT 0032_06_1407 (14 July 2006) URL: http://www.bailii.org/uk/cases/UKEAT/2006/0032_06_1407.html Cite as: [2006] UKEAT 0032_06_1407, [2006] UKEAT 32_6_1407

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APPEARANCES

 

For the Appellant	Mr Marc Jones (Solicitor) (Pro-Bono) Messrs Turbervilles Solicitors Hill House 118 High Street Uxbridge Middlesex UB8 1JT
For the Respondent	Neither present nor represented


 


Summary

Unlawful Deduction from Wages - Exclusions

Informal hearing leading to concession by unrepresented Respondent which may have resulted from erroneous representation by Chairman. Failure to appreciate effect of s.212 ERA.


 


HIS HONOUR JUDGE SEROTA QC

1. This is an appeal from a decision of an Employment Tribunal at Liverpool, presided over by Mr M D Humphrey Davis on 22 July 2005. By consent the Claimant was awarded £135 for work done in week 43 of 2004 without any admission of liability. The Employment Tribunal dismissed for lack of jurisdiction, that is because the claims were presented too late. Other claims, for unfair dismissal, wages, statutory sick pay, unlawful deductions, failure to supply written statement of terms and condition; failure to provide a guarantee payment, failure to provide an adequate pay statement. It was also asserted that the contract had been terminated to avoid paying statutory sick pay and that issue again was not determined.
2. When the matter came before the President on 30 November, the Claimant had put in, we believe, his own Notice of Appeal but an amended Notice of Appeal was prepared. It came in front of HHJ Clark and on that occasion we believe Mr Jones, who has appeared for the Claimant today, appeared under the ELAAS Scheme. Mr Jones was able to persuade HHJ Clark, that they there were fairly arguable points which were to be set out in an amended Notice of Appeal which was lodged on 28 April 2004. At this point in time we note that Mr Jones is appearing for the Claimant and we would express our gratitude to Mr Jones who has generously agreed to undertake this appeal on a Pro-Bono basis.
3. We say something briefly about the background to this unhappy matter. The Respondent trades as Cheshire Tree Surgeons. There has never been any adjudication upon the issues that are raised. It appears to be the case that the Claimant was sent his P60 after saying he needed time off work because he had a tennis elbow. We are not exactly sure of the precise date but it was some time in 2004 and he did return to work on a part time basis on 6 November of that year. He maintained that he was not provided with adequate pay, timesheets or details of his contractual position.
4. So far as the Respondent is concerned, his case has always been that the Claimant was never an employee, he was a freelance self employed operative using his own equipment and entitled to bring in his own assistants. There was no dismissal although he was invited to attend a grievance meeting. We must make it clear that we are in no sense adjudicating upon the merits of the arguments as to whether the Claimant was a worker or an employee but we do note that there are certain factors which are perhaps supportive of the Claimant's case including the fact that he was sent a P60 and invited to attend a grievance meeting.
5. The Respondent's case is that the Claimant left whatever it was he was doing voluntarily in August of 2004. The originating application was issued in April 2005. The Employment Tribunal listed the matter for a pre-hearing review to determine whether the Claimant was employed or whether he was a worker. On 2 June the Employment Tribunal decided that the matter would now be regarded as a full hearing and 2 hours were allotted to deal with all preliminary issues.
6. It is argued that a letter from the Chairman on 21 July suggested that the Chairman had somehow prejudged the issues. In my opinion, that letter in fact did no more than identify issues to be determined and we did not consider this to be anything from which it was proper to suggest an apparent bias on the part of the Chairman. Nonetheless the hearing took place on 22 June. It is apparent from the decision of the Chairman that what happened on 22 June was this; both parties were unrepresented, the Chairman attempted to assist the parties by explaining to them his understanding of the law and tried to seek common ground and as a result of the various explanations he gave and the various matters that were put forward by the Claimant and the Respondent, the Claimant eventually, on the basis of what might be described as advice or guidance from the Chairman, seemed to accept that he had been an employee, that his employment had terminated some considerable time before his originating application was issued and that therefore all of his complaints were out of time. The Claimant was obviously unhappy with what had happened and wrote a letter on 26 July to the Chairman, which the Chairman treated as an application for a review and the Chairman responded on 2 November with a letter. Now this letter represents the only reasons that have ever been given in this case. At the hearing that took place, no reasons were given and effectively all that the parties had was the end result. In this letter of 2 November the Chairman says he gave a sufficient explanation of the guarantee payments. The relevant law on extensions as to time did not help, "as it was not as intuitive" as he put it. He said he explained it sufficiently and that the Tribunal had no power to increase or decrease an order for the payment of the money. He continued:-

"However you were on notice before the hearing that the out of time issue would have to be considered; since all the claims were out of time, a matter the claimant agreed at the hearing, there was no point in considering whether you were an employee, which would in any event have involved a further hearing on another date.

Although the respondent had a respectable defence to the only outstanding money claim he agreed to make the payment to conclude the case."

7. The amended Notice of Appeal prepared by Mr Jones, raises a number of points. The first of those points relates as to whether or not the Chairman misdirected himself by failing to determine if the Claimant was an employee. It seems to us and this is a matter raised by Mr Jones, that it is at the very least arguable that section 212 of the Employment Rights Act operated as a bridge between the two periods of the Claimant's employment and we use employment in a neutral way. If that was right it would follow that the claims made by the Claimant were in time and not out of time. This is a point that does not appear to have been considered and on this ground alone it seems to us that the appeal must succeed and the matter should be remitted to the Employment Tribunal. We do not consider it necessary in the circumstances to say anything further about the suggestion of bias in the letter of 21 July. We express the view that there is nothing in that letter on a fair reading to suggest that the Chairman is trying to do anything more than identify the issues and we would not like the Chairman to think that in any way we are suggesting he has shown what might be described as bias or apparent bias and I see from Mr Jones that he is content with that explanation. Also we do not consider it necessary to go into the argument that the Claimant was deprived of the right of a fair hearing. We think this is an unfortunate situation in which the Chairman tried to assist the parties to arrive at a proper determination and unfortunately fell into error in so doing or at least fell into error by not ensuring that there was an adequate written record agreed by the parties as to what had taken place.
8. In those circumstances we think that this matter must be remitted for a further hearing and that is the order that we make. We think in the circumstances that it would be appropriate if this matter were to be heard by a differently constituted Tribunal. We should make clear incidentally that the judgment sent to the parties on 2 November is also a matter we have considered together with the letter to which we have referred.