Appeal No. EAT/795/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9 December 1994

	Before

	MR JUSTICE HOLLAND

	MR S M SPRINGER MBE

	MR K M YOUNG CBE

MR J B GAULTON	APPELLANT

AEGON FINANCIAL SERVICES LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR PANLAC
Messrs Bevans Solicitors
155 Whiteladies Road
Clifton
Bristol BS8 2RF

For the Respondents	MR EMERSON
Messrs Pullig & Co
Bridewell House
9 Bridewell Place
London EC4V 6AP

	MR JUSTICE HOLLAND:  By a notice of application dated 20 February 1994, Mr Gaulton, as Applicant, sought compensation from the Respondents for unfair dismissal.  In that notice he claimed to have been employed by them on and between 25 October 1991 and 2 February 1994, that is, for more than two years continuously, so as prima facie to satisfy the condition precedent to the jurisdiction of an Industrial Tribunal as provided for by s.64(1)(a) Employment Protection (Consolidation) Act 1978.

	In the Respondent's notice his alleged employers took specific issue with one contention.  In that notice they maintained that the relationship admittedly current on and between 25 October 1991 and 2 February 1994 accorded him throughout the status of a self-employed independent contractor and not that of an employee.

	The matter came before the Industrial Tribunal sitting at Bristol on 6 July 1994.  In the course of cross-examination of the unrepresented Applicant, a further issue emerged and that was as to whether he was alleging a relationship of employer-employee that was continuous over a two year period.  In the event, the Industrial Tribunal decided to deal with the matter by resolving that latter issue, that is, the length of the period of continuity first.  In the result, having heard his evidence, they ruled against him.  He now appeals against that finding.

	It seems to this Tribunal that for us to uphold a decision of the Industrial Tribunal, we would have to find that the issue was one of fact, that is, an issue that was wholly within the purview of the Industrial Tribunal, which issue could properly be resolved by the Tribunal, as indeed they seem to have resolved it, that is, on the basis of concessions made by the Applicant in evidence under cross-examination.

	For our part we are entirely satisfied as to the following matters.  First, we are satisfied that the Industrial Tribunal could not resolve the issue as to the length of any relationship alleged to be that of employer-employee without first resolving the issue as to whether there had been at any time that relationship.  Second, we take the view that that latter initial issue plainly raises questions of fact and law and that, certainly, it cannot be dealt with purely as a question of fact.  It follows that we are satisfied that this Industrial Tribunal wrongly directed itself in this regard.  Third, we take the view that had the Industrial Tribunal correctly directed itself, it would have focused initially on that which was rightly referred to in both the IT1 and the Respondent's notice, that is, an apparent contract in writing between the parties dated 25 October 1991, which contract was seemingly terminated on 2 February 1994.  

	Given that the apparent duration of this "agreement" equated with the period of employment initially alleged, given that it was seemingly in force during any of the lesser periods of employment that may have been conceded in cross-examination, its construction and effect had a vital importance possibly but not necessarily conclusive.  In our judgment the Industrial Tribunal should have been concerned to resolve as a mixed question of fact and law the issue as to whether the document that we now see created a contract of employment at any time or some other, and what, relationship.  

	There were canvassed before the Industrial Tribunal three periods in the history.  First, there was canvassed a period between 25 October 1991, such being the date on the document, and an unknown date in December 1991.  That period was focused upon because there was an apparent concession that employment was not alleged during that period.  Dealing with that period, in our judgment the precise relationship between the parties had to be resolved in part by reference to the document and what effect it had, if any, during that period.  Then one comes to the period from that unknown date in December 1991 to 15 November 1993 when, as is common ground, there was an important conversation between the Applicant and a Mr Gregory.  What, we ask rhetorically, was the relationship between the parties during that period?  Again, we identify a mixed question of fact and law and we identify the importance of construing that document and its effect upon the relationship between the parties during that period.  Finally, one comes to a period which seemingly the Industrial Tribunal found difficult to construe, that is, the period between 15 November 1993 and 2 February 1994 when, as it seems, any relationship, whatever it be, was terminated.  Once again, that required careful construction and, in the judgment of this Tribunal, that construction could not take place properly without including an analysis of whatever continuing effect there was arising from the document at 25 October 1991.

	Thus it is we have to conclude that there was here a serious misdirection by the Tribunal as to law, the misdirection being in essence two-fold.  First it is as to the issue it had to try and, second and more importantly, it is that that issue could be resolved by it purely as an issue of fact, in the event, an issue of fact to be resolved by oral evidence.  

	What, then, is this Tribunal to do about the resultant situation?  Having now had the advantage of looking at the documents that have been put before us, flowing in part from the fact that the Applicant is now legally represented, we have readily come to a view that we are simply not in a position to tackle the resultant problem.  We are not, as we see it, in any position now to make findings relevant to the length of period of any employment arising between the parties.  We cannot, on the material before us, make proper findings as to whether there ever was any employment.  We cannot, on the material before us, make any findings as to the length of any employment that may be established. 

	In those circumstances, we are entirely satisfied that the only appropriate course here is to remit this matter for a rehearing before the Industrial Tribunal, whether it be the same Tribunal or a different Tribunal.  We are quite deliberate in not being more specific.  It is manifest that the Industrial Tribunal will have to grapple with the construction of the document of 25 October 1991 and, plainly, we would expect that to be an early, if not the initial, issue.  We are not more specific because for that further hearing both sides will be represented and the abundant documentation will no doubt be pooled and jointly bundled into a paged binder and it would be entirely wrong of us to anticipate the results of that wholly different approach to the preparation of this matter and to anticipate the reaction of the Industrial Tribunal to the way in which it is presented to it.

	In conclusion, we are bound to allow this appeal and remit this matter for a complete rehearing.