MR M J MCGUIRE v INITIAL DEBORAH SERVICES LTD [1999] UKEAT 1464_98_0410

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1464_98_0410Case No Appeal No. EAT/1464/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M J MCGUIREAPPELLANTINITIAL DEBORAH SERVICES LTDRESPONDENT
Before
His Honour Judge J HicksDate 4 October 1999
[1]APPEARANCES For the Appellant MR C GLYN (of Counsel) ELAAS JUDGE HICKS QC : Mr McGuire, the appellant, was employed by the respondent, Initial Plant Services Limited, from January 1996. His employment ended on 15th May 1998, but there was an issue before the Employment Tribunal as to whether that employment had been continuous, the employer's case being that there had been a break of more than a week in October 1996. The effect of the relevant legislation is that if there is a break of more than a week then the employment is no longer continuous for the purposes of the Act.[2]The Employment Tribunal had a hearing on that issue and came to the conclusion that there was indeed such a break as the employers alleged, and therefore no continuity of employment across that period.[3]In his Notice of Appeal Mr McGuire raises various points which go to whether the tribunal erred in law or was perverse in its conclusion. Those are dealt with in grounds 1, 3, 4 and 5, but ground 2 reads as follows:
"The Tribunal came to their conclusion whilst refusing to allow me to give evidence I thought appropriate. Whenever I tried to give evidence to show how the Company worked and dealt by my particular Contract I was told that I would have to limit my evidence to the three or four weeks concerned in or about October 1996. I was refused the ability to produce my diary records showing the work that I did in that period."
That quite plainly, on its face, raises an allegation that the Employment Tribunal hearing was conducted in a way that was unfair to Mr McGuire. It raises two distinct points. The first, although it comes last in the paragraph, is the refusal to allow him to use his diary records showing what work he did in that period. The second is not so clear on the face of paragraph 2, but as explained to us by Mr Glyn it amounted to this: that Mr McGuire wished to give evidence that the affairs of the employer were conducted in such a way that there were a number of other people who were not, as he puts it, "on the books", in other words dealt with in every respect as employees should be dealt with in the form of PAYE, entries in the Company's records and so on and so forth, but who were undoubtedly and in substance employed by the employer. Mr Glyn, who appears under the ELAAS Scheme and has had only therefore a brief opportunity of taking instructions, was not able to tell us if any of those other cases were more closely similar to Mr McGuire's, in the sense of there being other people who were, as he puts it, "on the books", were briefly or for some period "off the books", but nevertheless were in reality and substance always employed, as he said he was. But that is the general nature of that other evidence that he says he was prevented from adducing.[4]In that state of affairs the appeal came before another panel of this Employment Appeal Tribunal on 30th April 1999. In the absence of the parties, and having read the documents, our colleagues gave a short judgment through Lindsay J which is not concerned with the matters which I have just been dealing with but with a separate point concerning what seemed to them one of the important steps in the reasoning of the Employment Tribunal, but as to which the existence or otherwise of evidence in support of the tribunal's finding was not clear. As a result there was an order of this Appeal Tribunal that the Chairman provide his notes:
"on such evidence as there was that related to the employer's general practice in late 1996 as to the recording of employment, to the recording of changes in the place of employment and as to the recording of the cessor of employment, as to whether those general practices were applied in Mr McGuire's case in or around October 1996 and if they were not why they were not and if they were not what other steps were taken in his particular case."
Although that direction was quite wide on its face, and indeed to some extent may have overlapped with Mr McGuire's complaint in ground 2 of his Notice of Appeal, it seems plain when read in conjunction with Lindsay J's judgment that the point with which our colleagues were particularly concerned was the change of Mr McGuire's employment number and whether there was any evidence to support the tribunal's conclusion that that was a significant element in reaching a conclusion as to the continuity of employment.[5]What seems to have escaped notice was the requirement in the procedure of this Appeal Tribunal that when allegations about the conduct of the Employment Tribunal proceedings such as those here in ground 2 are made there should be an affidavit by the appellant speaking to the facts as to the conduct of proceedings on which the appellant seeks to rely and that that affidavit should then be sent to the Chairman for comments. There were some comments by the Chairman here, very brief ones, on 18th December 1998, but they are not in answer to any affidavit and clearly do not deal to any significant extent with the points raised in ground 2. Again, the Notes of Evidence produced in response to the Order of this tribunal do not carry that matter any further.[6]There also has to be taken into account the appellant's PHD form, dated 22nd December 1998, which seeks leave for an amendment extending to 1½ pages and chiefly, if not entirely, concerned with the same general complaints as ground 2 of the Notice of Appeal. That application for leave to amend has not yet been dealt with.[7]It appears from the Court file that some attention was given in the office of this Appeal Tribunal to the question whether an affidavit should be required, but the fact is that none has.[8]My Glyn, for Mr McGuire, submits that this appeal cannot properly be dealt with, nor indeed can even a preliminary hearing be properly dealt with until the normal procedural requirement of an affidavit by Mr McGuire and comments by the Chairman is followed. We agree.[9]We propose, therefore, to deal with the matter in this way. Mr Glyn, although, as I say, appearing under the ELAAS Scheme, is very kindly willing to help Mr McGuire further by drafting an amended Notice of Appeal which will, as we understand it, include the substance of the amendment requested in the PHD form, although we apprehend that it will be very much more succinct. I say to draft it; I think, technically, it may be more accurate to say to assist Mr McGuire in formulating it, because Mr Glyn will have no professional instructions in the ordinary sense empowering him to sign any such Notice of Appeal.[10]On the basis that that will happen, we give leave for such an amended Notice of appeal to be filed and served and direct that that should be done within the next seven days. It must not of course go outside the substance of what is already in either the present Notice of Appeal or the PHD form.[11]When that has been done, then there should be an affidavit in support of those grounds of appeal which criticise the conduct of the Employment Tribunal hearing, and that should be sworn and filed within a further 28 days, unless Mr McGuire needs longer, but I cannot see that he does.[12]We direct, in the usual way, that that affidavit be sent to the Chairman of the tribunal and his comments invited.[13]Then, and only then, in our view, can there be an adjourned preliminary hearing which can really get to grips with the normal issues before such a hearing.