Osain v London Borough Of Southwark [1997] UKEAT 178_97_1405

EAT

Osain v London Borough Of Southwark

[1997] UKEAT 178_97_1405 · 1997-05-14

JUDGE PETER CLARK :

By an Originating Application presented on 7th September 1996, the applicant, Mr Osain complained that he had been unfairly dismissed by his former employer, the London Borough of Southwark ["Southwark"] on 7th June 1996.

By a detailed Notice of Appearance dated 27th November 1996 and signed by their Head of Legal (Contract) Services, Southwark admitted the dismissal but contended that the reason for dismissal related to the appellant's conduct and that it was fair. Specifically, it was alleged that at the time of his appointment to the post of Building Inspector on 14th January 1991 he had failed to disclose the fact that he did not have permission to work in the United Kingdom, having entered this country on a student work permit, and had deliberately attempted to mislead Southwark. In fact, he first obtained the necessary permission on 4th June 1996, three days before dismissal. By an amendment to the Notice of Appearance dated 6th December 1996, Southwark alleged in the alternative that there was some other substantial reason for dismissal.

The matter came on for hearing before the London (South) Industrial Tribunal on 13th December 1996 at which the time the appellant was represented by Mr Francis from his trade union and Southwark by Mr Burgher of Counsel.

It seems that two preliminary points were taken for the first time by Counsel on behalf of Southwark. The first was that the Originating Application was presented out of time. The tribunal applied the reasonable practicability proviso and allowed the matter to proceed.

The second point related to illegality. It was submitted that on the facts which were not materially in dispute, the contract of employment was illegal and void and could not found a claim of unfair dismissal.

In extended reasons dated 19th December 1996, the tribunal recorded the facts as follows:

"3. Mr Osain is a Nigerian national who came to the United Kingdom in 1988 with a permit which allowed him to study. He was well qualified in the building industry and he obtained a MA at Nottingham University and continued study part-time for a PHD. His permit forbad him from taking paid work without permission from the authorities.

4. In 1991 he applied for a job with Southwark Borough Council. It is part of his case that he told them of his student status but it is their case that he did not. But in any event, he began employment with them and no permission was obtained from the authorities for that employment to continue. He continued working for them so far as we know satisfactorily until in 1994 he brought to their attention that his student status was ending and that he was staying in this country firstly upon an application for permanent residence and secondly upon an application for asylum. The Council then stated that it was not prepared to support any application by him to work here and further took the point that he had in effect applied for the job on a false pretence that he was permitted to work here. Disciplinary procedures then took place and on 7 June 1996 he was dismissed for misconduct, namely for telling lies to the Council in his application for the job. Three days earlier, his application for asylum was granted and there was therefore no restriction upon him obtaining paid employment in the United Kingdom."

The tribunal record the appellant's contention that he had done nothing wrong, and that he had at all times brought to the attention of Southwark the fact that he was a student. It was a recognised procedure, if not law, that Southwark had a role and probably the major role in obtaining permission to employ him, because it was only on their certificate that he could work. They had assured him that they would take the necessary procedures and he was therefore entitled to rely on them to do so, and his dismissal by them was therefore unfair. At the very least his case should be heard upon its merits.

On those facts the tribunal upheld that plea of illegality and dismissed the complaint without investigating the fairness of the dismissal.

The Appeal

In this appeal Mr Brown submits that the tribunal erred in law in not offering an adjournment to the appellant so that his representative and he could consider the new illegality point raised for the first time on the day of the hearing.

The difficulty with that contention is that Mr Francis, who appeared on behalf of the appellant below, did not apply for an adjournment. There was no surprise into the facts as they were found, which had been canvassed in the pleadings before the hearing. The only point was the strict legal point as to illegality.

Although Mr Brown submits that it was a breach of natural justice not to offer the adjournment, we cannot agree with that submission. In our judgment, it was not necessary in the circumstances of this case for the tribunal to offer an adjournment to Mr Francis when he did not seek one.

But there is a further problem; that is that when gently pressed by us, Mr Brown really had to concede that even if an adjournment had been granted, the result would have been the same. He acknowledges that in the absence of a work permit the contract was illegal; that in those circumstances the appellant did not have sufficient qualifying service to bring a complaint of unfair dismissal; and accordingly it seems to us that no purpose would have been served by granting an adjournment.

This is a preliminary hearing held to determine whether or not the appeal raises any arguable point or points of law. It follows from what we have said that in our judgment there is no arguable point of law to go forward to a full hearing, and in those circumstances this appeal must be dismissed.