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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hyde-Walsh v. Ashby (t/a Anderson Stockley Accredited Training) [2008] UKEAT 0463_07_1502 (15 February 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0463_07_1502.html Cite as: [2008] UKEAT 463_7_1502, [2008] UKEAT 0463_07_1502

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APPEARANCES

 

For the Appellant	MR S WELLS (of Counsel) Instructed by: Messrs Chandler Ray Solicitors 22 West Street Buckingham MK18 1HG
For the Respondent	MR W HOSKINS (of Counsel) Instructed by: Messrs Hoben Johnson Solicitors 1 High Street Wellingborough Nottinghamshire NN8 4HS


 


SUMMARY

Practice and Procedure

EAT decided that an Appellant cannot raise a cause of action on an appeal which was not raised before the Employment Tribunal because the Appellant did not realise that such a cause of action existed on the facts until after the Employment Tribunal had issued the Judgment. Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 applied.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal from a Judgment of an Employment Tribunal sitting at Bedford on 25 July 2006 and 8 September 2006. The Chairman was Mrs C Tribe and the Members were Mr F Boucher and Ms S Timoney. There was clearly insufficient time to hear the whole of the Claimant's case on the first day. At the conclusion of the hearing on 25 July 2006 the Employment Tribunal decided that the Claimant was not an employee of the Respondent but was a self-employed contractor providing services to it. The reasons for that decision were sent to the parties and entered in the register on 2 August 2006: EAT bundle pages 26A-26E.
2. There was a further hearing on 8 September 2006 when the Employment Tribunal decided that the Claimant was a "worker" as defined by regulation 2(1) of the Working Time Regulations 1998 and section 230(3) of the Employment Rights Act 1996. The Employment Tribunal went on to award the Claimant holiday pay in the sum of £379.50 and £1250 for unlawful deduction of wages under section 13 of the Employment Rights Act 1996. The claim for breach of contract was dismissed: EAT bundle pages 28-29. The reasons for those findings were sent to the parties and entered in the register on 4 October 2006: EAT bundle pages 33-37.
3. At the hearing before us the Appellant was represented by Mr Stephen Wells of Counsel and the Respondent by Mr William Hoskins of Counsel. We are grateful to both of them for their oral and written submissions.
4. As the hearing progressed we became concerned that the written and oral submissions presented to us did not deal with what seemed to us to be an important issue in the case, namely whether or not an Appellant can raise before the EAT an argument which was based upon facts pleaded in its claim form but which it did not in fact advance before the Employment Tribunal because it did not know of the existence of the argument at the time. We accordingly gave permission to both Counsel to file further written submissions on this point within 14 days of the date of the hearing. Those submissions have now been received.

History

5. From November 2001 to August 2005 the Appellant worked as a trainer/assessor for National Vocational Qualification (herein after "NVQ"). The Respondent is a supplier of training and assessment for NVQ's.
6. By a claim form dated 28 October 2005 the Appellant commenced a claim in the Employment Tribunal against the Respondent. The relevant paragraph in the claim form is paragraph 5 which is headed "Unfair dismissal or constructive dismissal". It says this:

"5.1 If you were dismissed by your employer, you should explain why you think your dismissal was unfair. If you resigned because of something your employer did or failed to do which made you feel you could no longer continue to work for them (constructive dismissal) you should explain what happened.

I submitted an internal verification report on 29^th July 2005 covering an internal verification visit I had made on behalf of Anderson Stockley on 21^st July 2005. During the visit I discovered several serious issues with the assessors work and action plans for her candidate and work that was signed off as adequate clearly was not. I had found similar issues with this particular assessors work on previous visits and had raised these with the centre. However, the issues did not seem to have been addressed by the centre and the assessor was still making the same fundamental errors. The errors were so serious in my view that they placed the integrity of the qualification at risk.

The response of Anderson Stockley to my report in a letter dated 2^nd August 2005 was to dismiss me as both an internal verifier and assessor without notice. They also made allegations about my professionalism and stated that the report was malicious and negative.

It should be stated that an internal verifier's role is to judge the quality of evidence supplied by the candidate and basically reassess the work more with an eye to the work of the assessor than to that of the candidate. The problem in this case was that the candidate had had work signed off as complete when it clearly was not. I would have been negligent in my responsibility as an internal verifier if I had agreed with decisions made by the assessor that were clearly inadequate and I produced an action plan for the candidate which was to be used as a guide for the assessor so that she would be able to encourage her candidate to generate enough evidence to meet all of the required criteria so that she could successfully achieve the qualification." EAT bundle pages 4-5

7. In paragraph 8 of the form ET1 there is a claim for unpaid invoices and holiday pay: EAT bundle page 7.

The first Employment Tribunal decision

8. On 26 July 2006 the Employment Tribunal decided that the Appellant was not an employee of the Respondent and that the claims for unfair dismissal and breach of contract were therefore dismissed. The claims relating to wrongful withholding of pay were adjourned to 8 September 2006: EAT bundle pages 26-26E.
9. At the beginning of the hearing on 26 July 2006 the Tribunal identified the issues it had to try: reasons paragraph 1 and how it was going to proceed: reasons paragraph 2. The Employment Tribunal said this:

"1. The Claimant is Mrs Hyde-Walsh. She worked for the Respondent, a partnership, from 2002 until the relationship came to an end in 2005. The Claimant is a Trainer/Assessor for National Vocational Qualifications. When the relationship came to an end she brought proceedings before this Tribunal. Her claims are:

(1) that she was unfairly dismissed,

(2) that the Respondent was in breach of contract by failing to give notice of termination or make a payment in lieu of such notice

(3) that the Respondent had wrongly withheld payment on the invoices she had submitted, and

(4) that the Claimant had received no holiday pay. The Respondent denies that the Claimant was an employee.

2. At the commencement of the hearing today, since the main issue between the parties was whether the Claimant was an employee or a self-employed sub-contractor, it was agreed with the parties that it would be appropriate for us initially to first determine the status of the Claimant in order to determine whether the Tribunal has jurisdiction to deal with the complaints of unfair dismissal and breach of contract."

10. We note that the Claimant was represented by Mr N Conley who is described as a team leader but is also her husband. The Respondent was represented by a Mr A Varilone who is a solicitor.

Employment Tribunal Judgment 8 September 2006

11. On 8 September 2006 the same Employment Tribunal decided that the Appellant was a "worker" within the meaning of section 230(3) of the Employment Rights Act 1996 and Regulation 2(1) of the Working Time Regulations 1998. In reasons sent to the parties on 4 October 2006 the Tribunal gave its reasons for finding that the Appellant was a worker and ordered the Respondent to pay £1250 in outstanding payments and £379.50 in unpaid holiday pay. The Judgment and reasons appear at EAT bundle pages 28-37.

The Notice of Appeal

12. The Notice of Appeal appears at EAT bundle pages 39-41 and was drafted by the Appellant in person. It has not been amended. Because we regard it as important we set out paragraph 6 of the Notice of Appeal in full:

"6. The grounds upon which this appeal is brought are that the Employment Tribunal erred in law in that:

On the 8th September 2006, the Tribunal found in a unanimous decision that I, Mrs. Hyde- Walsh, was a worker in accordance with the definition contained in the Working Time Regulations 1998 and in the identical provisions of the Employment Rights Act 1996.

It is my solicitor's contention that, having determined I was a worker, the Tribunal should have recognised that the protection afforded by Section 47B of the Employment Rights Act 1996 applied. Further to this, and having seen that I had suffered a detriment as a direct causal result of my public interest disclosure, the Tribunal should have addressed itself to this issue (see London Borough of Harrow v Knight EAT 2003 and Darnton v University of Surrey EAT 2003).

It is our view that, if in a previous first stage hearing the Tribunal had found that I was an employee, it is likely that I would have been found to have been unfairly dismissed, partly because my dismissal was a direct consequence of my making a public interest disclosure (i.e. my expressed concern that Anderson Stockley Accredited Training was not following their legal obligations in the examination of candidates for national vocational qualifications). As a direct consequence of my public interest disclosure I suffered a detriment - the loss of my work and income.

The Tribunal were apprised of the essential facts in this regard both in the ET1 submission and during the second hearing, when I read out a statement describing in full the circumstances of my dismissal. I also provided additional evidence in support of these claims.

As such it is our view that once worker status was determined the Tribunal should have reviewed the original reasons given for dismissal to assess whether detriment had occurred to me under the provisions of Section 47B of the Employment Rights Act 1996.

I would also like to request an extension of time for the appeal as I have received very confusing and contradictory information about how to proceed with this case which has left me very confused and uncertain about what to do.

I did submit my request for an appeal within the time limit as it was received on the 14^th November 2006. However, I have today received a request to submit a EAT form 1 and when I queried this have received contradictory information. In view of the contradictory advice I have therefore sent a copy of my original appeal letter to the Bedford Employment Tribunal to request a review and at the same time would like to submit this form 1 to support my previous application for an appeal."

13. In essence the Appellant submits that having decided that the Appellant was a "worker" within section 230(3) of the Employment Rights Act 1996 they should have gone on to decide that she had made a protected disclosure under section 47B of the 1996 Act and was therefore entitled to compensation. The Appellant's case is that such a contention was clear in the light of the language used by her in paragraph 5.1 of her complaint form.
14. It was conceded by Mr Wells that at no time did either the Appellant herself or her husband as representative raise this point before the Employment Tribunal upon either day of the hearing. It was not a point that became apparent to them until they took legal advice some time after the second Judgment and reasons were received by them.
15. As we have indicated there seems to us to be three points to this case. The first (Ground 1) is whether there was a duty on an Employment Tribunal to examine the facts set out in the form ET1 and/or a witness statement to ascertain the precise claims brought by the Claimant when the Claimant her/himself does not know of the existence of a particular legal head of claim despite the facts pleaded in the form ET1 and/or the witness statement. The second (Ground 2) if that is so then whether that raises a fresh point of law in this case. Third, (Ground 3) if it does raise a fresh point of law do any exceptional circumstances exist which permit us to hear the appeal. We take each in turn.

Ground 1

16. As we have indicated the submissions on this ground of appeal are in writing and essentially both Counsel refer us to the same authorities but seek to put a different interpretation on them. For the Appellant Mr Wells very much relies upon (a) the overriding objective contained in Regulation 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004 No.1861); (b) Red Bank Manufacturing Co Ltd v Meadows [1992] IRLR 209 and Langston v Cranfield University [1998] IRLR 172; (c) Mensah v East Hertfordshire NHS Trust [1998] IRLR 531. Mr Wells contends that Mensah is distinguishable on the facts; (d) the clear language of paragraph 5.1 of the form ET1 set out above.
17. By contrast Mr Hoskins relies (a) on Mensah and the language used by the Court of Appeal in that case and (b) on Dimtsu v Westminster City Council [1991] 450 where Knox J distinguishes Langston and Red Bank Manufacturing Co Ltd on the facts. He casts doubt on the authority of Langston in the light of Mensah which post dated it. There is no reference to either Langston or Red Bank Manufacturing Co Ltd in Mensah. Dimtsu was cited with approval Mensah: [1998] IRLR 531 at paragraph 21 per Peter Gibson LJ.

EAT decision

18. We are not aware of any reported decision which is exactly in point. We discount the cases on amendment of a claim form because they revolve around the issue of whether the facts pleaded can properly give rise to a claim different from that already pleaded: Selkent Bus Co Ltd v Moore [1996] IRLR 661.
19. We therefore return to basic principles. First, we consider the overriding objective set out in regulation 3 of the 2004 Regulations. It says this:

"3 Overriding objective

(1) The overriding objective of these Regulations and the rules in Schedule 1, 2, 3, 4, 5 and 6 is to enable Tribunals and Chairmen to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable –

(a) ensuring that the parties are on an equal footing;

(b) dealing with a case in ways which are proportionate to the complexity or importance of the issues;

(c) ensuring that it is dealt with expeditiously and fairly;

(d) saving expense.

(3) A Tribunal or Chairman shall seek to give effect to the overriding objective when he or she;

(a) exercises any power given to it or him by these Regulations or the rules in Schedules 1, 2, 3, 4, 5 and 6; or

(b) interprets these Regulations or any rules in Schedules 1, 2, 3, 4, 5 and 6.

(4) The parties shall assist the Tribunal or the Chairman to further the overriding objective."

20. In this case the Employment Tribunal (under an experienced Chairman) and with both parties represented (albeit that Mr Conley was not a lawyer) identified the issues which it had to try: EAT reasons 2 August 2006 paragraphs 1-2 set out above. Neither the Appellant nor her husband identified a claim for compensation under section 47B of the Employment Rights Act 1996 on the grounds of a protected disclosure as being a live issue for the Tribunal to decide. Indeed, as I have indicated they were not aware of its existence or consequences until after the hearing on 8 September 2006 and after the receipt of the reasons dated 4 October 2006 received by them on 5 October 2006. We reject Mr Wells's submission that the Employment Tribunal has in any way breached Regulation 3 of the 2004 Regulations. The Chairman did what any sensible Chairman would do and with the assistance of the parties identified the issues which the parties wished the Employment Tribunal to decide. We also note Regulation 3(4) of the 2004 Regulations.
21. Second, we turn to the authorities. It seems to us that the most important authority is clearly Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 where the Court of Appeal held that there was no duty on an Employment Tribunal, of its own motion, to ensure that every allegation in an originating application (now a claim form) is dealt with, unless it has been expressly abandoned even where the Claimant does not put forward evidence to make good the allegation nor argues in support of it. There is no such duty in a civil action in the ordinary courts even if the Claimant is a litigant in person. The Court of Appeal went on to say that it is always good practice for Employment Tribunals to clarify with their Claimant, especially if appearing in person or without professional representation, the precise matters raised in the originating application which are to be pursed, and to seek confirmation that any other so raised are no longer pursued. However, it must be for the judgment of the particular Tribunal in the circumstances of the particular case before it whether of its own motion it should investigate any pleaded complaint which it is for the Claimant to prove but which she is not setting out to prove. We note in particular the Judgment of Peter Gibson LJ at paragraphs 14 and 17. He reviewed the authorities at paragraphs 18-22 of his Judgment. In his short Judgment Sir Christopher Slade said this at paragraphs 35-36:

"35 We can only speculate as to the reasons for her silence on this issue at those points of time. However, in the light of the directions given on 29 June 1994, in which she had acquiesced, and in the light of her failure to adduce any argument or any evidence at the subsequent full hearing before the industrial tribunal to support her claim relating to the vacancies at the neonatal unit, I have to agree with Peter Gibson LJ that the Tribunal cannot be said to have erred in law in failing to deal with that complaint. The authorities to which he has referred in my judgment preclude findings of any legal duty on the part of the tribunal to deal with it of its own motion, or of any corresponding legal right in Mrs Mensah to have it dealt with in the circumstances of this case.

36 I too would strongly encourage industrial tribunals to be as helpful as possible to litigants in formulating and presenting their cases, particularly if appearing in person. There must, however, be a limit to the indulgence which even litigants in person can reasonably expect. The desirability in principle of giving such assistance must always be balanced against the need to avoid injustice or hardship to the other party on the particular facts of each case. This, in my judgment, is a very good reason for holding that the manner and extent of such assistance should generally be treated as a matter for the judgment of the tribunal and not as subject to rigid rules of law. In the present case, the trust was in my judgment reasonably entitled to expect that the tribunal would in its decision be dealing with only those issues which had been covered by the direction of 29 June 1994 and Mrs Mensah's oral submissions and evidence."

22. We respectfully agree with the Court of Appeal that a failure (if that it be) by the Employment Tribunal in this case to flag up or raise the question of whether or not the Appellant was seeking to make out a case that if the Employment Tribunal found that she was a worker within section 230(3) of the 1996 Act she was also making a claim for compensation for making a protected disclosure under section 47B of the same Act does not give rise to an error of law. To hold otherwise would be to put an intolerable duty upon an Employment Tribunal.
23. Third, we are fortified in our view of the law by the belief that it is inherently unrealistic for such a rule of law to exist. We ask ourselves what could be the rationale for the rule which allows a party who did not raise a particular head of claim in an Employment Tribunal to successfully appeal the Judgment of the Employment Tribunal on the ground that the Employment Tribunal should have considered a head of claim which the Appellant did not know existed at that time.

Ground 2

24. The jurisdiction to allow new points of law is circumscribed by authority binding upon us. The principal authorities in the Court of Appeal are Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 at paragraph 20 per Robert Walker LJ; Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 at paragraph 17 per Laws LJ. The authorities have recently been helpfully summarised by HHJ McMullen QC in this Tribunal in Rance v The Secretary of State for Health and NHS Business Services Authority [2007] IRLR 665 at paragraph 50.
25. Mr Wells concedes that if this appeal was successful and the case was remitted even to the same Employment Tribunal then that would require consideration of fresh issues of fact by the Employment Tribunal in the sense that the section 47B issues were not canvassed at all before the Employment Tribunal. A remission to a fresh Tribunal would result in an even longer hearing: see paragraph 50(7)(a) of Judge McMullen QC's Judgment in Rance. Mr Wells seeks to distinguish Jones on the grounds that there was no concession on behalf of the Claimant in the present case and Glennie on the ground that the Claimant was represented by her husband and she would suffer an injustice if she were not granted an opportunity to make her case now. In our judgment those are distinctions without a difference. What those two cases are important for is that they uphold a line of authorities which go back as far as Kumchyk v Derby City Council [1978] ICR 1116 which had been applied by this Tribunal and the Court of Appeal for some thirty years and the present case is not in some way distinguishable from that line of authorities.

Ground 3

26. Before reaching our decision on whether to permit this new ground of appeal to be raised we consider whether there are exceptional circumstances which permit us to exercise our discretion to entertain it.
27. Essentially Mr Wells makes two points here. First of all he says that because the Claimant was represented by her husband she would suffer an injustice if she were not granted an opportunity to raise this point in the EAT, second, he submits that there appears to have been in effect an oversight by the Employment Tribunal because the hearing was split into two parts and at the second part the Employment Tribunal having decided that the Appellant was a worker did not go on to consider the reason why she was dismissed which was for making a protected disclosure and therefore she had a claim under section 47B of the 1996 Act.
28. Neither of these reasons seem to us to be exceptional reasons. The fact that someone is a litigant in person or has a lay representative cannot of its own mean that the case is exceptional unless there are other circumstances to make it so: Lipscombe v The Forestry Commission [2007] EWCA Civ 428 per Waller LJ at paragraph 38.
29. In our judgment the combination of the fact that (a) the issue was not raised at all before the Employment Tribunal by the Appellant or her representative; (b) being a point which did not go to jurisdiction and (c) would require a further hearing and fresh evidence if the appeal was allowed and the matter remitted to the same or a different Tribunal mean that we are firmly of the view that the point is a fresh point of law which cannot be raised in this Tribunal and there are no exceptional circumstances to justify it being argued.

Conclusion

30. For these reasons the appeal is dismissed.