Morgan & Anor v Brith GOF CYF [1999] UKEAT 164_98_0802

EAT
Morgan & Anor v Brith GOF CYF
[1999] UKEAT 164_98_0802 · 1999-02-08

JUDGE PETER CLARK :

By Originating Applications presented to the Cardiff Employment Tribunal on 4 July 1997, both Appellants, Mr Morgan and Mr Rowley, brought claims both of unfair dismissal and breach of contract against the Respondent, Brith Gof.The Respondent is a theatre company. The Appellants are artistic performers.The nature of their case, set out in their Originating Applications was that in January 1997 both Appellants were promised work with the Respondent for the rest of that year, but that their employment was unfairly and unlawfully terminated in breach of contract on 5 April 1997, and that in particular they were not offered work in productions which were put on by the Respondent during the year commencing 5 April 1997 including tours undertaken in Italy and Romania.It is important to note at this stage, we are told today that in the bundle of documents before the Employment Tribunal Chairman, was a document prepared by Mr Morgan on behalf of the Appellants in effect amending the basis on which the case was put in the original application. That becomes material when considering the first ground of appeal which is before us today.In response to the claims the Respondent contended that both Appellants were employed under fixed term contracts, the first covering the period 6 January 1997 until 30 March 1997, and the second for a period of one week from 31 March to 5 April 1997. The first contract specifically covered a project known as TUAG AT HAFOD and the second for a one week production called HAFOD.The claims were listed for hearing at Cardiff on 12 September 1997. Prior to that hearing the Appellants wrote to the Employment Tribunal on a number of occasions. In particular they expressed difficulties over calling a potential witness, Mr Gerald Tyler. On 4 September they wrote to say that he could be available to give evidence between 10 am and noon on the 12 September.The parties attended on that day. Mr Tyler was present, as were two others, Dr. Nicholas Arnold and Ms Jenny Livsey, who later gave evidence on behalf of Appellants. The Chairman, Mr John Thomas, sat alone.It seems that an initial question arose over whether the Appellants had sufficient continuous employment to pursue a claim of unfair dismissal. After an adjournment the Appellants conceded the unfair dismissal claims on the basis of having insufficient service and the matter proceeded before the Chairman on the breach of contract claims alone.Having heard evidence on both sides the Chairman accepted the case advanced by the Respondents. By a decision with Extended Reasons dated 23 September 1997, the Chairman found that at a meeting held in November 1996 and attended by Mr Cliff McLucas (at points in the reasons mistakenly referred to as McMaster) and the two Appellants and other performers, Mr McLucas did not, as the Appellants contended, so the Chairman said, inform them that they would be engaged for a year and should make themselves available for the whole year. The contracted work, the Chairman found, was limited to the period to which the two material written fixed term contracts referred. The claims for breach of contract were dismissed.Following promulgation of that decision the Appellants applied for a review by letter dated 6 October 1997. Detailed grounds for review are there set out. We draw attention for the purpose of this judgment to paragraph 6 of the review application, in which it is said:
"6) Paragraph 7 contains a misreading of our case. Our case is that we were asked to commit ourselves for a year to the 'Hafod' project. Bundle document 3.2, page two, first line talks of a year long project. (At the time this document was written by Mr McLucas the entire project was known as "Tuag at Hafod", but it clearly states the relationship between the first period of three months and subsequent work). To talk about us being 'engaged for a year' implies that we though we would be in continuous employment. That was never our understanding of the contract, nor the case we argued (see bundle document 1.1a, paragraph 2). We were requested to keep ourselves available for the year."
Other points were raised in that application; that the Appellants had not conceded their unfair dismissal claims, that the Chairman had misunderstood various parts of the evidence down to misnaming Mr McLucas and that the decision was wrong.We read those grounds with some care and note that at no stage is it suggested that the Appellants had been prevented from calling the oral evidence of Mr Tyler at the hearing.The application for review was dismissed by the Chairman by a decision dated 27 October 1997. Having received that review decision the Appellants appealed to this Appeal Tribunal by a notice dated 31 October.The appeals came on for preliminary hearing before a division of the Tribunal presided over by Mr Justice Kirkwood on 24 June 1998. For the purpose of that hearing Mr Morgan had prepared a skeleton argument on behalf of the Appellants and at paragraph 7 of that skeleton argument, he took a point that the Chairman had dismissed the Appellants witnesses including Mr Tyler and then later went on to hear the substantive case without those witnesses present, thereby prejudicing the Appellants position.The Appeal Tribunal decided to adjourn the preliminary hearing so that the Chairman could provide his comments on that particular suggestion. He did so by a letter dated 9 September 1998.Today the matter comes back to us on the restored preliminary hearing and having considered the Chairman's comments, the Appellants through Ms Laing, who appears on their behalf under the ELAAS pro bono scheme, abandons that particular ground of appeal.Ms Laing takes two points before us today, both of which are set out in amended grounds of appeal. The first point is that the Chairman misunderstood the nature of the Appellants case. It was not that they were to be available for a year and in return would be paid for the whole year, rather that by making themselves available, they would be given work on such projects as arose during the course of that year.We appreciate that there is an important distinction between the two and we think that the distinction was made in the form of amendment to the Originating Application which was in the bundle before the Chairman and was also specifically adverted to in paragraph 6 of the review application which we have set out earlier in this judgment.Although the Chairman refers to an alternative way in which the claim is put at paragraph 12 of his Extended Reasons that deals with an alternative argument on the basis of the custom of the industry, rather than an expressed oral agreement reached in November 1996.We have reached the conclusion that that point is just arguable and the appeal will proceed on that ground.The second point is a procedural matter not without difficulty. Ms Laing has referred us to section 4(5) of the Employment Tribunals Act 1996 and submits that it is for the Chairman who sits alone in a wrongful dismissal or breach of contract claim to explain why he has exercised his discretion in favour of continuing to sit alone rather than to sit with a full Tribunal. That point has been considered by the President sitting in this Tribunal, in Sogbetun v Hackney London Borough Council [1998] ICR 1264 . Ms Laing has drawn our attention to that authority and submitted that although that deals with a case of unfair dismissal where the parties expressly consented to a Chairman hearing the case alone, the principle of the exercise of discretion under section 4(5) of the 1996 Act applies equally to the instant case.Again we think the point is arguable and in the interest of consistency we shall direct that this case be listed for half a day before the President, so that he may again consider this particular point. There are no further directions save that there be exchange of skeleton arguments between the parties and copies lodged with this Tribunal not less than 14 days before the date fixed for the full appeal hearing. Leave to amend the notice of appeal in terms of the draft placed before us is granted, a typed copy of the amended notice of appeal to be lodged within 7 days.