THE LONDON BORUGH OF SOUTHWARK v MR S DAVIS [1999] UKEAT 441_99_2206
[1]APPEARANCES For the Appellants MR J SWIFT (of Counsel) Instructed by: Ms L Meadows Head of Legal (Contact) Services The London Borough of Southwark South House 30-32 Peckham Road London SE5 8UB MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which the London Borough of Southwark wishes to make from effectively two decisions of an Employment Tribunal in a case in which they are the respondents to an application made against them by a Mr S Davis. Mr Davis complained that he had been unfairly dismissed. For that purpose, he had to establish that he had sufficient continuity of employment. That depended upon the nature of the contractual relationship between himself and the London Borough of Southwark.[2]At a hearing on 11th February 1999 the tribunal concluded that the applicant did have sufficient continuity of service as a casual member of staff.[3]That hearing was not attended by the respondents. They say because they did not receive the Notice of Hearing which may or may not have been sent to them.[4]They subsequently and promptly got in touch with the tribunal explaining that they had not received the Notice of Hearing and hence had not been present, and asked the tribunal to review their decision because the interests of justice required that there should be a contested hearing.[5]The tribunal refused to grant such an application and that is the second decision which is under appeal.[6]The grounds of appeal are fully and carefully set out in Mr Swift's skeleton argument, dated 11th June 1999. In summary form, what he is saying is that the tribunal erred in law in construing the contractual documents when reaching its conclusion that a contract of employment existed, even on the occasion when Mr Davis was not required to perform any work for the Council; and secondly, that the tribunal were wrong not to have granted the application for a review, or at least to have considered it, at a hearing with a full panel of the tribunal to determine what the facts were. If the tribunal accepted as a matter of fact, having heard the evidence, that the London Borough of Southwark had not been notified of the date of the hearing, then the interests of justice manifestly demanded that they should be given a right to participate in those proceedings. What Mr Swift says is that by the Chairman's decision simply to refuse their application for a review, they have been deprived of the opportunity of persuading a tribunal that they were not properly notified, and of having a proper opportunity to participate.[7]Without in any way restricting the extent of the arguments by what I have just said by way of summary, it seems to us that the two decisions should be looked at by the Employment Appeal Tribunal because the points in the skeleton argument are all arguable.[8]The skeleton argument is a rather better document for the purposes of the full hearing than the Notice of Appeal, in the sense that it sets it out with great clarity what is going to be said. There is no need to amend the Notice of Appeal because the skeleton argument is in fact foreshadowed by it.[9]I have looked at the respondent's PHD form, for which we are grateful. It seems to me having regard to the contents of that form and to the submissions made that I can give the following directions. Firstly, that this is a Category C appeal; secondly, that Notes of Evidence relating to the hearing are not required; and thirdly, that the time estimate is ½ a day. The respondent, perhaps slightly optimistically, suggest that the time estimate of ½ an hour would be appropriate for this, I think ½ a day is rather more realistic.