Appeal No.	 EAT/875/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 November 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR K M HACK JP
LORD GLADWIN OF CLEE CBE JP

MR G GEORGIOU & OTHERS	APPELLANT

(1) OPENHAND LTD 
(2) SOS FOR TRADE & INDUSTRY	RESPONDENTS

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR MICHAEL DUGGAN
(of Counsel)	
For the Respondents		

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to identify whether there is an arguable point of law in an appeal which Mr Georgiou and two others wish to make against a decision of an Industrial Tribunal Chairman sitting on his own, following a hearing on 19 February 1998.

	The issue before the Industrial Tribunal was firstly, whether the Tribunal had jurisdiction to hear the complaints.  That they decided in favour of the Applicants.  Secondly, whether they were employees for the purposes of the Employment Rights Act 1996.  It was in relation to that issue that the Appellants failed.

	We are told that the hearing took place over a 20 minute period, that there was oral evidence given by one of the Applicants on behalf of all three of them, that questions were asked by the other two Applicants of that witness;  that a representative on behalf of the Secretary of State did not cross-examine any of that evidence, that after the evidence had been given, the Secretary of State representative made a short submission, that in the course of the hearing, reference was made to the authorities referred to in the Secretary of State’s letter of 26 August 1997, but that no reference was made to the decision of the Employment Appeal Tribunal in Secretary of State for Trade and Industry -v- Bottrill [1998] IRLR 120 or a decision of the Court of Session in Fleming.

	It is the Applicants’ contention before us through Counsel to whom we are grateful, that the Tribunal finding that towards the end when the company was in financial difficulties, the directors did not take their full salaries, was simply an error, because the uncontroverted evidence given, was precisely the opposite in effect.

	Accordingly, we have a position in which the Appellants here feel that after a wholly inadequate hearing they have lost the case, partly on the basis of a misunderstanding of the evidence, and partly by reference to a particular point which certainly was not highlighted, so far as they could see it, in the issues before the Industrial Tribunal.

	We are prepared to allow this appeal to go forward for a full hearing.  It seems to us that the points raised to which I have referred, are all arguable and for the purposes of enabling us to do justice between the parties, it is important that an affidavit be provided to us dealing with the circumstances in which this case came before Employment Tribunal.  What documents were there and what happened at the hearing.  It seems to us also important that the affidavit should deal with the question of the evidence that was given in relation to the taking of the full salary and what authorities or case law was cited to the Industrial Tribunal.

	When that affidavit has been sworn, it will be sent to us and we will copy it to the Respondent company and to the Secretary of State, who has asked to be joined in relation to these proceedings.  We formally make an Order joining the Secretary of State as a party in the exercise of our discretion under our Rules.  It is obvious that they are an interested party here.

	When the response has been received from the Respondents, the affidavit will be sent to the Industrial Tribunal Chairman for his comments.

	Having regard to the issues raised, it seems to us, that this is a case where we should respectfully ask the learned Chairman to provide us with his notes of evidence.  It is a case where they are plainly needed so that it can be established more precisely, what was and was not said.

	I have indicated that the affidavit should exhibit to it all the documents to which reference was made in the Industrial Tribunal by any of the parties, assuming that those documents are still in the custody, possession or power of the deponent.  I suggest that the Appellants’ deposit of the affidavit is sworn by the gentleman who gave evidence at the Industrial Tribunal on behalf of himself and his two fellow Applicants.  

	On that basis the matter will proceed to a full hearing.  I want to make it quite clear at this time, that allowing this case to go for a full hearing, does not imply that the Employment Appeal Tribunal has at this stage taken any view as to the likely outcome of the appeal.  It is a category A case.   It will last, I would think for half a day and there are no other directions which need to be given at this time.