MR W SPENCE v BRITISH RAILWAYS BOARD [1999] UKEAT 755_99_1810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 755_99_1810Case No Appeal No. EAT/755/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR W SPENCEAPPELLANTBRITISH RAILWAYS BOARDRESPONDENT
Before
Mr Justice LindsayDate 18 October 1999
[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of preliminary hearing the appeal of Mr W Spence in the matter of Spence v British Railways Board . There was a decision sent to the parties on 10 June 1999 after a hearing on 10 May 1999 at London North. The unanimous decision of the Tribunal was that the provisions of Section 200 of the Employment Rights Act 1996 applied and that the Employment Tribunal had no jurisdiction to consider the Applicant's complaint of unfair dismissal. The rest of the decision is not relevant for immediate purposes. The Tribunal held in their paragraph 1 as follows:
"The Applicant, Mr W Spence, was employed by the Respondent as a Police Sergeant in the British Transport Police from 2 May 1977 until 17 April 1999. He complains that he was unfairly dismissed. This is a preliminary hearing to determine whether having regard to section 200 of the Employment Rights Act 1996, a Tribunal has jurisdiction to consider Mr Spence's complaint of unfair dismissal."
[2]The question before the Tribunal was thus almost entirely one of statutory construction and in their paragraph 6 they said:
"It is therefore the unanimous decision of the Tribunal that Mr Spence is excluded from the right not to be unfairly dismissed by virtue of the provisions of section 200 of the Employment Rights Act 1996 and the Employment Tribunal has no jurisdiction to consider his complaint of unfair dismissal."
[3]Mr Spence draws our attention to section 200 of the 1996 Act, to section 53 of the British Transport Commission Act 1949 and to the Police 1996. We have also had a letter from the Respondent's solicitors drawing our attention to the case The Queen v Chief Constable of British Transport Police Ex parte Farmer and in that letter at page 5 of the transcript (the case is not, it seems, reported)

Lord Justice Henry in the Court of Appeal said:

"Constables are appointed to the BTPF under Section 53 of the British Transport Commission Act (as amended), and consequently are exempt as police officers from much of the Employment Rights Act, 1996 by Section 200(2)(a)."
[4]However, it is not clear that that had, in fact, been an issue in that case and, moreover, the solicitors for the British Transport Police in fact urge it had not been in issue. Those solicitors also draw our attention to yet further legislation, namely to the Transport Act 1968 section 69-70 and the Railways Act 1993 section 132, without actually drawing the specific terms to our attention. We would not wish our decision today to be taken to encourage Mr Spence in the belief that the Tribunal's conclusion was wrong in law but we do see this as a matter proper to go to a full hearing for a number of reasons.[5]First of all, the scope of section 200 as an exemption is a question that affects a good number of people, not just Mr Spence; this is a case that has practical consequences for a large number of people. Secondly, a full examination of the question may require an examination of legislative history not only of section 200, but of other Railway and Policing Acts, as the citation from other Acts already brought to our notice shows to be appropriate. It is an examination which, although Mr Spence has obviously done a good job preparing his case, is an examination that may require a more broad view of legislation than is open to Mr Spence, who is appearing in person without assistance.[6]Such full examination is as really necessary to come to a thoroughly informed view on this subject may also require a survey to see whether the door which was open by the Pepper v Hart decision assists one party or another in this case. It is a very technical area where the Court may well feel that, even doing the best that he can, Mr Spence cannot render the Court the assistance it really needs. Moreover, Mr Spence already in a letter of 15 June 1999 has suggested that the Tribunal below misunderstood his case. In leaving aside whether that is right or wrong it is unsatisfactory that a case of principle affecting many people should go forward in this technical area without the Court having in front of it the fullest argument from both sides.[7]We cannot be satisfied that Mr Spence has no arguable point of law and we think it right, therefore, to direct a full hearing. It is a pity that no union or other body has yet come to Mr Spence's aid to provide some form of legal assistance but our understanding is that, at any rate at the full hearing, legal aid may, at least in theory, be possible. Whether Mr Spence's case attracts legal aid is, of course, not a matter for us but we would commend the appeal - the full hearing - as being a matter which does require technical aid at a professional level from lawyers in order that the Tribunal which hears it can come with confidence to a fully informed decision. All we do at this stage is direct a full hearing of Mr Spence's appeal.