MR IAN SIMPSON v VAN DEN BERGH FOODS LTD [2000] UKEAT 86_00_2605

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 86_00_2605Case No Appeal No. EAT/86/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR IAN SIMPSONAPPELLANTVAN DEN BERGH FOODS LTDRESPONDENT
Before
Mr Justice LindsayDate 26 May 2000
[1]APPEARANCES For the Appellant Miss Swann (of Counsel) Instructed by: ELAAS MR JUSTICE LINDSAY (PRESIDENT) This is a preliminary hearing of the appeal of Mr I Simpson in the matter of Simpson v Van den bergh Foods Ltd. Today Mr Simpson who previously has been acting for himself, has had the advantage of having Miss Swann appear for him under the ELAAS scheme and we are grateful to her for the assistance she has given us. On 7 September 1999 Mr Simpson lodged an IT1 for unfair dismissal. In their IT3 by way of response Van den bergh asserted that:
"The applicant was verbally informed on 28 February 1999 by Paul Setchell, Production Manager [that his fixed term contract would be extended to 25 June 1999 and] as the permanent positions had now been filled, the applicant's FTC would not be renewed after 25 June 1999 and his employment would end on 25 June 1999."
And then a little later they say in their paragraph 13: 13. "The Respondent denies that the Applicant was not informed of the reason for his dismissal. This had been given verbally during the conversation held on 28 May 1999." So there is no suggestion at that stage that there had been any reason for the dismissal other than such as had been given to Mr Simpson on 28 May 1999. Nor is there any suggestion at that stage of any contractual provision in Mr Simpson's contract, that for example, temporary appointees had to apply for a permanent job or that they would be taken to have applied for a permanent job and therefore had to be tested for a permanent job, nor that if they did apply for a permanent job and were tested and failed that that would in some way justify their losing their temporary job by way of its non-renewal. There is no conceivable reason to imply any one of such terms, the last of which would have the curious effect that, if a man applied to move from a temporary job to a permanent job, that would, in itself, jeopardise his temporary job.[2]So far as concerns that IT3 it is, in the absence of any such contractual term, difficult to understand the Van den bergh reasoning, namely that as the permanent positions had been filled, the temporary contract would not be renewed. That would make sense if the case were that Van den bergh had filled all the positions they needed with permanent appointments and that accordingly they did not need any temporary appointments. But without there being any such holding, the reasoning appears illogical in the sense that it would appear to be that:
"As job type A is filled, you will be renewed in your job type B."
Moreover, Mr Simpson's case was that this was not a case where there were no temporary jobs available for reason of every permanent position being filled and that that had led to no need for temporary jobs. His case was, as it would seem, that even as he was being dismissed, Van den bergh were still advertising for temporary appointees. The particulars that he attached to his IT1 included that the Respondent was taking new staff on both through agencies and through advertising in the local newspapers.[3]Unfortunately, the Tribunal makes no mention of the conversation of 28 May 1999; quite what the import was of the conversation at which the reasons for the dismissal were said to have been explained to Mr Simpson is not therefore explored in any detail. The Tribunal said that Mr Simpson was under no illusion as to the reason why his temporary contract was not renewed and at paragraph 8 they say: 8. "We are satisfied that the reason for the dismissal in this case is some other substantial reason sufficient to satisfy the provisions of S.98 of the Employment Rights Act 1996. The applicant was not selected in a fair selection procedure for the permanent posts and accordingly his temporary contract was not renewed." And then the Tribunal continued:
"Thus we are satisfied that the company acted in good faith and we are satisfied in accordance with the provisions of S.98 (4) of the Act, that in all the circumstances of the case, dismissal was reasonable. This was not an unfair dismissal."
[4]But the Tribunal never seemed to reflect on the possible illogicality of Van den bergh's reason for dismissal, namely that the non-selection for a permanent post provided a reason for the non renewal of a temporary one, not withstanding that this particular temporary worker had been held to be competent and reliable at the temporary job. There may be an error of law in that area. At the moment all we are concerned about is whether there is an arguable error of law and there may be one there in the sense that the apparent illogicality of Van den bergh's position, if it was right that they continued to advertise for temporary workers, does not seem to have been taken into account by the Tribunal. But the Tribunal continued in their paragraph 11: 11. "We are satisfied that the employer acted in good faith and reasonably; the applicant was not taken in any way by surprise and that the Company was entitled in the circumstances to employ him on the basis where he would be replaced by other workers if he did not meet their selection standards."[5]But we have been shown the written contract between Van den bergh and Mr Simpson. There is no contractual provision that he could be replaced: "If he did not meet their selection standards."…….. if that means to suggest the selection standard for a permanent employee, nor, as we have mentioned, could that possibly be implied as a term of contract. If, alternatively, the selection standard there in mind was a selection standard appropriate to temporary staff, then there is no finding that Mr Simpson fell short of that standard in his pallet job. The pallet job was not held to have been redundant and he was held to have been competent and reliable at it. So, whichever meaning is given to the reference there to selection standards, it is not easy to see how the Tribunal concluded that Mr Simpson had been employed on the basis to which the Tribunal there refers to. Here, too, there is an arguable error of law; we must, of course insist that at this stage all we are concerned about is the arguability of the point.[6]The case therefore is fit to go a full hearing. It would be wise if Mr Simpson were able to obtain professional assistance, perhaps on legal aid, for the full hearing. We add this, that Mr Simpson has complained of bias in the Tribunal in the shape of alleged brow-beating of the applicant and anger on the part of the Tribunal as he put his case. He has sworn an affidavit on that issue. The Chairman has answered that, denying misconduct of any kind. The Notice of Appeal does not assert bias or misconduct as a ground for the appeal and accordingly we do not permit the bias side of things go forward to a full hearing. It is not raised in the Notice of Appeal and therefore there is nothing to allow to go forward on that subject.[7]Miss Swann today has mentioned Chairman's notes and it does seem to us that some chairman's notes will be needed in this matter. Rather than ordering full notes at this stage, we think the better course is to allow the subject of chairman's notes to be raised when both sides can address it and it may be that by then Mr Simpson will have professional assistance. I think the better course, so far as concerns chairman's notes is that when the matter is being prepared to go forward to the full hearing which we have permitted, one or other side or both can write to the President asking for such Chairman's notes as they, by then having considered the matter, think desirable and I will be able to rule on that written application. I would hope that an oral application, which of course involves delays and costs, could be avoided, but equally it is wrong simply to give general approval to Chairman's notes if more is being asked for than may prove strictly necessary.[8]That some chairman's notes are likely does seem to be inevitable from the form of some points sought to be raised by Mr Simpson before he had the assistance of ELAAS; he says:
"Regarding the reason given at the Tribunal hearing by the Respondent for my dismissal was that there was no longer a role for me to fill but the Respondent was recruiting temporary workers at the time of my dismissal."
That, perhaps, is going to be an important point and whether evidence was given and if so what it was is likely to need to be explored at the full hearing and so the position today is this: - First of all the Notice of Appeal is permitted to go a full hearing. We give leave to Mr Simpson within 21 days after our sending out of the transcript of this judgment to amend the Notice of Appeal to refer to the 2 grounds which we have mentioned as potentially arguable. We add that if the Notice of Appeal is not so amended within that period, then those grounds will not be capable of being raised at the full hearing. We do not strike out any of the existing points in the Notice of Appeal or disallow them from being taken at the full hearing, although we are bound to say that if Mr Simpson is able to get professional assistance then it would be useful if thought could be given to pruning the existing Notice of Appeal. However at this stage we do allow the whole of the present Notice of Appeal to go to a full hearing. We do not permit allegations of bias and misconduct at the hearing to go forward; they are not raised in the Notice of Appeal and therefore are not to go forward. We make no immediate order for Chairman's notes, but if they are to be requested the request in the first place is to be in writing to the President alone in the hope that an oral directions hearing can be avoided. Skeletons are to be sent to the Employment Appeal Tribunal and exchanged between the parties not later than 21 days before the hearing and if it that is not observed, then the Employment Appeal Tribunal may adjourn the hearing without further notice, leaving the issue of any costs thus thrown away to be dealt with at the adjourned hearing.