McGuire v Initial Deborah Services Ltd [1999] UKEAT 1464_98_3004

EAT

McGuire v Initial Deborah Services Ltd

[1999] UKEAT 1464_98_3004 · 1999-04-30

MR JUSTICE LINDSAY : In this matter we have a preliminary hearing of an appeal, but we are not expecting anyone to attend for reasons which I will explain. Mr McGuire brought a case against his erstwhile employer, Initial Plant Services Ltd trading as Initial Deborah Services Ltd, and the chief point of argument was whether or not there had been a breach in the continuous employment of Mr McGuire. Mr McGuire asserted that there had been no break in continuous employment and that therefore he was entitled to make the claim that he was making.

Two factors point towards an adjournment today.

First of all, on 27th April 1999 a letter was received by fax from Mr McGuire here at the EAT requesting an adjournment. The position that he spoke of was that he had recently returned from training, got in contact with his solicitors, but had been told by his solicitors that the solicitors had been unable to get Legal Aid for the appeal and that, therefore, they, the solicitors, had done very little to prepare for the hearing. In other words, Mr McGuire was going to have to do the work himself and this came a unwelcome blow in the course of his preparation for the case, and he asked for an adjournment on that ground.

Secondly, what would seem to have been an important step in the reasoning of the Employment Tribunal on the subject of whether or not there had indeed been a break in the otherwise continuous employment, was to be found at paragraph 7 of the tribunal's decision where it says this:

"... He [ Mr McGuire ] says that he moved from Truro elsewhere. Therefore, there would be new department number - quite understandable. However, he had a new employee number. Says the applicant, that was required by the computer. We do not see that - quite the contrary. An employee number keeps track of the employee's history in the business - a new number would confuse things. There is no reason, we consider, to give the applicant a new employee number if his employment had continued. ..."

That was obviously an important step in the reasoning of the tribunal.

However, there has been very short correspondence between the Chairman at that Employment Tribunal and the EAT, and it seems that there was no direct evidence of that step to which the Employment Tribunal had been referred. The letter of 18th December 1998 says:

"The Chairman accepts that there was no direct evidence that an employee number keeps track of an employee in the business. The conclusion stated was reached in the light of the evidence that the respondent highlighted the new employee number and accepted that the move to a new location would entail a new department number. Further, that if it was simply a transfer of depot, there would be no termination of employment or the need for a new starter form - which we concluded led to the new employee number."

Whether that was a permissible matter of inference, it not having been a direct matter of evidence, is not a thing that anyone can rule upon without a view of the evidence in the area as a whole. In other words, it seems to us that the Chairman's Notes are required, even to form an adequate view at a preliminary hearing. Indeed, in the respondent's own preliminary hearing directions form, they, too, suggest that Chairman's Notes would be necessary. It seems to us an informed view of whether there is any arguable point of law requires the Chairman's Notes.

Those two reasons together seem to us to point towards an adjournment. With those factors in mind, we adjourn the case generally, with liberty to restore.

The Chairman is to be invited to give 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 cesser of employment, as to whether those general practices were applied in Mr McGuire's case in and 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.

If, as seems likely, there were witness statements put forward at the tribunal as evidence, then we shall need to see those too; if the Employment Tribunal cannot itself supply them, then the parties must be asked to supply them.

When the Chairman's Notes and the witness statements, if any, are available, then the matter can be restored for a further hearing of the preliminary hearing. We adjourn it generally with that mind.