Leitch v John Ellam Pictures Ltd [1996] UKEAT 844_95_2102

EAT
Leitch v John Ellam Pictures Ltd
[1996] UKEAT 844_95_2102 · 1996-02-21
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at Stratford on 28 April 1995. The Tribunal decided a preliminary issue relating to Mrs Leitch's right to pursue a claim against the Respondent, John Ellam Pictures Ltd. In extended reasons sent to the parties on 17 July, the Tribunal explained their unanimous decision that Mrs Leitch was not an employee of John Ellam Pictures Ltd and therefore the Tribunal did not have jurisdiction to proceed to hear the claim of sex discrimination or unfair dismissal.Mrs Leitch had made a complaint of a pregnancy dismissal and sex discrimination in her Originating Application, presented to the Tribunal on 14 October 1994. In that application she described herself as working on a "self-employed" basis as an outworker making 3-D pictures of Beatrix Potter, Bramley Mill and so on. She set out in the application the details on which she based her complaints of unfair dismissal and sex discrimination.The Respondent's response to that was simply that Mrs Leitch had no contract of employment. Therefore she was not dismissed and had no grounds for bringing her application to the Tribunal.At the hearing on 28 April, Mrs Leitch conducted her own case. A personnel consultant represented the Respondent. The Tribunal heard submissions and they decided that Mrs Leitch was self-employed. This appears in paragraph 4 of the full reasons. They said:
"... We are quite satisfied that the Applicant was working on a self-employed basis, and for that reason the Tribunal does not have jurisdiction to proceed further with her claim, either for sex discrimination, or, on the ground of unfair dismissal. That is the substantial issue which we have to decide, and concludes the case."
Mrs Leitch appealed against that decision by a Notice of Appeal served on 2 August 1995. In that she made the point that the Tribunal had misdirected, misunderstood or mis-applied the law, in that they wrongly directed themselves that they did not have jurisdiction to determine her complaint under the Sex Discrimination Act 1975 , as she was not an employee within the meaning of the Act. The Tribunal had wrongly interpreted Section 82, which says that:
"`Employment' means employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour,..."
The Tribunal had wrongly interpreted or failed to consider, Section 82 in the light of the Court of Appeal decision in Mirror Group Newspapers v Gunning .Mrs Leitch subsequently gave notice that she wished to amend her appeal to add another ground, that the Tribunal erred in law in concluding that for the purpose of the Employment Protection Act she was self-employed. She gave notice of that amendment by a letter of 9 September 1995, but we have been informed today at this Preliminary hearing by her representative, Mr Quigley, that that application for amendment is not pursued. That just leaves the question of Section 82 of the Sex Discrimination Act 1975 , and the extended meaning of "employment".At a Preliminary hearing we decide whether there is an arguable point of law on the appeal. If we think it is arguable, the case proceeds to a full hearing, which takes place with both sides present and advancing arguments. We have no doubt that Mrs Leitch has an arguable legal point. But we would not be doing any service to her, in the circumstances of this case, in simply directing the matter goes on to a full hearing. There would be another hearing here, more time and expense, and the other side would have to attend. If Mrs Leitch won her appeal, we probably could not decide her case. All we could do is remit it to the Industrial Tribunal for a re-hearing on this issue, in the light of directions as to the correct interpretation of Section 82 of the 1975 Act . In the circumstances, the best course is not to direct the matter to proceed to another hearing here, but to make no order on the appeal, so that Mrs Leitch can then take up the offer which the Tribunal has made, of its own initiative, to review its decision.We have read a letter of 25 July 1995, sent by the Tribunal to Mrs Leitch and to the representative of the Respondents, saying this:
"The Tribunals notifies the parties to this complaint that it proposes to review its decision promulgated on 17 July under the power to do so given by Regulation 11(3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993.
The grounds for the proposed review are that the Tribunals overlooked Section 82 of the Sex Discrimination Act 1975 in giving its decision. [They quote the Section with its extended meaning of employment]The fact that the Tribunal found that the applicant was self-employed precluded a claim for unfair dismissal under the Employment Protection (Consolidation) Act 1978 but may not preclude a claim under the Sex Discrimination Act 1975.The reason for the proposed review is that the interests of justice require it.Such a review, if granted, would not mean that the applicant will be successful, but merely that she may proceed to seek to establish her claim."We are of the view that that letter is almost tantamount to an admission by the Tribunal that they did make an error of law, in relation to their determination of Mrs Leitch's work status, in relation to her claim under the Sex Discrimination Act , and that they are willing to look at it again and possibly reach a different decision, so that the case can proceed on the merits.After advice from the Regional Chairman, Mrs Leitch took the position that she wished to postpone the proposed review, until the outcome of the appeal. We understand that, but we think that, for the reasons explained, the best way of getting to the merits of this case, is for us not to direct a full hearing of the appeal, but to make no order on this appeal. Mrs Leitch can now write to the Industrial Tribunal saying that she wishes to pursue a review, suggested by the Industrial Tribunal.It would help the Tribunal to understand what has happened here and would also put the Respondents in the picture, if a copy of the transcript is provided both to the Respondent and to the Tribunal. We make it clear that Mrs Leitch has not made any concession about her case, other than that she is self-employed for the purposes of the Employment Protection Act . She is not withdrawing her appeal. It is solely for the reasons of saving time and money that it has not been necessary to follow the normal procedure of a full hearing.The question has arisen whether the review should take place before the same Tribunal. Mrs Leitch expressed some reservations. We do not think there is any cause for concern for Mrs Leitch on this aspect. The review of a decision is normally conducted by the same Tribunal that made the decision it is reviewing, for obvious reasons of convenience and because of the nature of a review. A review is not an appeal. A Tribunal does not hear an appeal against itself. It is the same Tribunal that made a decision looking at its own decision in the light of further legal argument or further evidence. It does not follow, however, that the merits hearing should take place before the same Tribunal that has made the determination of the preliminary issue of status, or has reviewed that decision.It is open to Mrs Leitch to request that a different Tribunal hears the merits case. It would be no reflection on the Industrial Tribunal, which heard the preliminary issue, for her to make that request. It is common for substantive hearings to take place before a different Tribunal than has decided a preliminary issue.