MR D R GOULD v KEMP & CO [2002] UKEAT 578_00

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 578_00 EAT_2501Case No Appeal No. EAT/578/00 EAT/1514/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D R GOULDAPPELLANTKEMP & CORESPONDENT
Before
Mr Justice LindsayDate 25 January 2002
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant MR JUSTICE LINDSAY (PRESIDENT) These are two preliminary hearings each of an appeal by Mr D R Gould in the matter D R Gould -v- Kemp & Co . Mr Gould has written in to tell us that he is not proposing to attend this morning. Had he attended, he would have had, as we understand it, the assistance of an ELAAS representative, but the ELAAS system is such that unless the party attends, the ELAAS representative cannot represent that party and so Mr Gould, by not attending, has denied himself the assistance of an ELAAS representative. But he has put in some notes or comments and we have therefore paid regard to those. They were faxed yesterday and were put before us this morning.[2]Mr Gould, who is qualified as a barrister, became disenchanted with school mastering, which was the job that he was then engaged in, and was offered or sought or at any rate agreed future employment with the Respondent firm of solicitors. But work for the firm never began; it was cancelled before it started and on 23 July 1999 he lodged an IT1 for breach of contract and equal pay. He said that his employment had been due to start on 26 July 1999; he alleged that he was told by Mr Kemp of the employer firm:
"I would start my training contract by 31 st December 1999."
[3]In his IT1 he says:
" Mr Kemp agreed that the probationary period would cease by the end of 1999 and that I would start my training contract by 31 st December 1999. Mr Kemp said that my headmaster….." …… and that is referring back to Mr Gould's spell as a schoolmaster….. "spoke very highly of me"
In a meeting on 26 th April 1999, Mr Kemp informed me that he wished to breach our contract, never taking me on. He apologised for this." Mr Gould adds, in his IT1:
"Mr Kemp has since refused to confirm his reasons in writing. He did not offer any compensation and recently refused an express request by myself for compensation. As a result of the Respondent's actions, I have lost two jobs, not one - the one I resigned from and the one I was going to."
A little later he says:
"I wish to claim damages such as the following: the loss of my teaching salary; the loss of my teaching perks such as pension; the damage to my teaching career; the loss of my salary from Kemp & Co and associated perks, for the period when I was due to be working for both the school and Kemp & Co ……..the loss of my legal career and legal training (since my contract entailed training me to be a solicitor); expenses (e.g. loss of earnings and out of pocket expenses incurred in seeking alternative employment); and interest at 8% per annum."
He said under the Equal Pay Act :
"I suspect that my salary was lower than that of other employees in a similar position, though this is just a recent suspicion and I fully accept that I may be wrong."
Not, perhaps, the most categoric of claims.[4]On 23 August 1999 the Respondent firm of solicitors put in an IT3. It set out the three alleged express terms which it said had been agreed; they do not include any contractual reference to a training contract. They said:
"2. By a contract dated 17 th July 1998 and signed by the Applicant on 24 th August 1998 ("the contract of employment") the Respondent agreed to employ the Applicant. The following were express terms of the contract of employment: (a) "1. Job Title: Initially, your job with us would be 'barrister' on the basis that you have been called, etc. We would like to move towards agreeing that you start a training contract with us after 12 months ….." "
Pausing there, that does have the appearance of an agreement to agree, which is recognised not of itself to be a contract. "(b) "4. Notice. During the first 12 months of your employment, the notice period would be one month on either side. We would like you to start a training contract with us on 1 st September 1999 on the basis that notice has not been served by either side before then." (c) "5. Salary: Your salary will be £20,000 payable in arrears in 12 monthly instalments by credit transfer on or before the last working day of each month."[5]In paragraph 3 of the IT3, the prospective employer says:
"3. It was originally agreed between the parties that the Appellant's employment by the Respondent would commence on 12 th October 1998. However, the commencement date was subsequently postponed by consent to 26 th July 1999."
And then continuing:
"6. On 31 st March 1999 Mr Kemp wrote to the Applicant informing him that the Respondent would not be in a position to employ him in July 1999. At a meeting between Mr Kemp and the Applicant on 26 th April 1999 Mr Kemp informed the Applicant that the Respondent was no longer in a position to employ the Applicant, whether commencing on 26 th July 1999 or otherwise. 7. In the premises, the contract of employment was terminated, at the latest, on 26 th April 1999, three months prior to its date of commencement. The Applicant never became an employee of the Respondent."
And then under the heading "Breach of Contract" the IT3 said:
"The Applicant was given notice, at the latest, on 26 th March 1999 that his employment would not commence on 26 th July 1999 or at all. In the premises, the Applicant was given notice in excess of the one month notice period under the contract of employment. Accordingly, it is denied that the Respondent acted in breach of contract. Alternatively, the Applicant is entitled to no damages since his notice period expired or would have expired prior to the commencement of his employment in any event."
Finally, from that, under the heading of "Equal Pay" the IT3, settled by Counsel says:
"10. The Applicant's equal pay claim is not understood. The Applicant identifies no comparator of the opposite sex, nor their alleged salary. In view of the Applicant's admission in the Originating Application that his equal pay claim "is just a recent suspicion and I fully accept that I may be wrong" it is averred that this claim is frivolous and/or vexatious and should be struck out."
Well, that was the state of the pleadings, to call them that, that went forward to a hearing of the Tribunal on 22 and 23 February 2000.[6]On 6 March the Decision was sent to the parties. It was the Decision of the Tribunal at Stratford under the chairmanship of Mr J N Leonard and it was:
"The unanimous decision of the Tribunal is that the respondent was in breach of a term of the employment contract relating to notice. The complaint of the applicant that he was victimised on the basis of his sex is dismissed."
[7]On 8 May the EAT received a Notice of Appeal dated 4 May from Mr Gould. On 19 April 2000 Mr Gould had applied to the Employment Tribunal for a review of the Decision of 6 April. Ground 3 of that Application for a Review was:
"The tribunal's decision makes no express reference to my claim for two weeks' damages for my cancelled employment over the Easter of 1999; nor for compensation for the value of the training I was to receive during the 1 month plus two weeks."
On 2 May 2000 the Chairman accepted that that ground 3 only was fit to go forward for a review hearing, and indicated that a date for a review hearing would be fixed.[8]On 11 July the review hearing was fixed for 19 October, and it was arranged that the remedies hearing would come on at the same time, and accordingly on 19 October 2000, there was a hearing of the review application and on 26 October the review Decision was sent to the parties. Again, of course, it was a decision of the Tribunal at Stratford under the chairmanship of Mr J N Leonard and the Decision itself is as follows:
"The unanimous decision of the Tribunal is that: i) on review of the decision sent to the parties on 6 April 2000, the Tribunal vary that decision and find that there was no breach of contract by the Respondent in cancelling an arrangement by which the Applicant would work for the Respondent during Easter 1999; ii) remedy for the breach of a term of the contract as to notice earlier found be assessed in the sum of £1,265 plus interest of £84.33. Credit must be given to the Respondent for the sum of £1,265 already paid and it is ordered that the Respondent pay to the Applicant the sum of £84.33."
[9]On 11 December 2000 there was a second Notice of Appeal, it related only to the Decision of 26 October and in this way we have two Notices of Appeal before us. Quite often the individual headings of the Notices of Appeal are set out at some length, but rather than lengthen this judgment by reading each out and then dealing with each it would be more convenient simply to refer to Mr Gould's particular arguments by reference to the numbers he gives in his two respective Notices of Appeal.[10]So first of all we look to the Notice of Appeal of May, directed to the Decision of 5 April 2000. This Notice of Appeal sets out a number of grounds and as to 6.1, Mr Gould urges as follows:
"Paragraph 21 of the tribunal's decision states that: ' There was no term of the agreement that …..it [a training contract] would commence no later than 31 December 1999' With respect, this is factually incorrect. Mr Kemp admitted this term, referring to it in paragraph 30 of his witness statement. It is submitted that the decision that this term did not exist is inconsistent with the evidence and is therefore wrong in law."
We do not have Mr Kemp's witness statement, and in any event, the Employment Tribunal looks to all the evidence, both written and oral.[11]The Employment Tribunal made a careful analysis of offer and acceptance and variation in this case. They found that the original offer included this:
"It proposed a start date of 1 September 1998. The offer contemplated that the parties would 'move towards' agreeing a training contract after 12 months."
The offer became unconditional; Mr Gould introduced variations but they did not relate to any training contract. Kemps accepted some of the variations and qualified their earlier offer and Mr Gould accepted that, making an endorsement as to recent negotiations. Later still, the start date was agreed to be varied; Mr Kemp gave oral evidence. The Tribunal held:
"21 There was no term of the agreement that Mr Gould would start a training contract immediately upon completion of the 'probationary' period or that it would commence no later than 31 December 1999."
We have no material before us to suggest that that was a conclusion which had the support of no evidence whatsoever. If there had been a formal admission made on the subject, as Mr Gould alleges, we cannot think that the Employment Tribunal would have overlooked it. On the material laid before us there is no arguable point of law on this heading 6.1 and we therefore dismiss that as a ground unfit to go to a full hearing, a ground not containing any arguable error of law.[12]6.2 is concerned with late amendment. Mr Gould sought to add, in his closing submissions to the Employment Tribunal, two new arguments: firstly, that there was an implied term, one of a novel character in his arrangements and, secondly, that Mr Kemp breached it. The Tribunal deal with this, they say this:
"By his written representations, Mr Gould has sought to assert breach of another implied term, namely that the respondent, seeking to breach the contract, would act promptly and with due diligence. It is not open to the applicant, in his closing submissions, to advance an alternative basis of claim. He places reliance upon the principles set out by Mummery J in Selkent v. Moore [1996] ICR 386. Those are of no assistance to him. This tribunal does not, in any event, feel able to imply a term governing the conduct of a party about to breach the contract. A respondent must accept the consequences of his breach according to the ordinary principles affecting assessment of loss. Those will be no better or worse by the artificial adoption of a term to the effect claimed."
Mr Gould fails to recognise that the power to allow amendment discussed, in the case he draws attention to, Selkent Bus , is a discretion. He argues, by reference to Selkent Bus , as follows, after a citation from the case:
"Therefore it is submitted that it is both unreasonable and an error of law for the tribunal to have decided that 'it is not open to the applicant, in his closing submissions, to advance an alternative basis of claim'."
[13]In order to show error of law in the exercise of a discretion, which is what this is, Mr Gould needs to show that the Employment Tribunal took into account matter which it should not have taken into account, or failed to take into account something which it should have taken into account, or otherwise erred in principle of law. That, in our view, is not shown. Moreover, the test for the existence of an implied term in contract is one of necessity. There is, as it seems to us, no need for the implied term which Mr Gould seeks to imply, nor is any authority given for the existence of such a term, and the Employment Tribunal's Decision on this point shows, in our view, no error of principle or otherwise, and so on this 6.2 heading there is, in our view, no error of law and we dismiss the appeal on that point here and now.[14]Next is 6.3. The only breach of contract which the Employment Tribunal upheld was as follows, in their paragraph 23:
"Thus the respondent was in breach of the term of the contract requiring one month's notice of termination and the applicant is entitled to damages for breach of that term."
It was for the remedies decision to consider what loss flowed from that breach, and the quantification of that loss does not arise as a matter of appeal at this stage of the argument, and we dismiss 6.3. In 6.4, again, the nature of the loss flowing from the only breach that was upheld was a matter for the remedies hearing and we dismiss it at this point in the first Notice of Appeal.[15]Next is 6.5. When Mr Gould received the final form of written offer and was asked to fax back and sign a copy of it if he agreed with it, he carefully added an endorsement to the fax. He then, in oral evidence, asserted that a yet further express oral term had been agreed. Mr Kemp gave evidence and Mr Gould gave evidence, and the Tribunal held:
"13 It is Mr Gould's case that, by 24 August, there was incorporated an express oral term the effect of which was that the 'probationary' period would be subject to termination by one month's notice only by reason of conduct or capability. There was no such term to that effect. Mr Gould has not sought to mislead us but he has misled himself by elevating in his own mind vague indications made in the course of discussions into contractual terms."
The Tribunal added:
"Had Mr Gould secured a promise in the terms alleged, it is inconceivable that he would not have made express reference to that before signing the agreement."
That, as it seems to us, was a view that Tribunal was entitled to take. Mr Gould had carefully endorsed the fax to include everything that he regarded as agreed but had not referred to this alleged express oral provision. It was for the Employment Tribunal to decide whose evidence to accept, and to what extent it should be accepted, and we see no arguable error of law in 6.5 which is again, accordingly dismissed.[16]As to Mr Gould's 6.6, at paragraph 19, the Tribunal said, and I think to correct the grammar one has to introduce the word "He" at the beginning:
"[He] having brought a complaint of sex discrimination against his former employer, it is Mr Gould's belief that Mr Hare determined that he would damage his career. He is able to adduce no direct evidence but he relies upon the drawing of an inference based on evidence of Mr Hare's propensity to damage his interests by providing negative and misleading references and of seeking out potential employers in order to pass on his message. Mr Hare is said to be seriously ill and neither side had been in a position to call him as a witness."
Mr Hare was, I think, the headmaster at a school at which Mr Gould had previously been employed. Continuing with the quote from the Tribunal, with their paragraph 20:
"to draw the inference sought by Mr Gould, we would have to reject the evidence of Mr Kemp. That is that he spoke to Mr Hare on only one occasion and that was to provide an oral reference, noted by Mr Kemp in an attendance note, in sufficiently positive terms to lead the respondent to make its offer of employment. We accept Mr Kemp's evidence on the point as accurate and truthful and, indeed, we regard it as improbable that Mr Hare, some time after providing a positive reference, would seek out Mr Kemp to express a different, negative view of Mr Gould. We find as a fact that he did not."
Having taken the view that we have just quoted from paragraphs 19 and 20 of their Decision, the Tribunal did not need to embark on the improbability which was there considered. They were entitled to do as they did, and their conclusion on the point was one of fact, not of law. It involves no error of law and we do not find even an arguable error of law in that part of the case, so 6.6 is dismissed.[17]Now we turn to 6.7. Here, Mr Gould said this:
"The Respondent relied upon evidence from persons who were not witnesses (namely references from Robert Spencer and John Hare). It is submitted that this should not have been allowed. I represented myself. It is submitted that the tribunal should have told me that I could object to the admissibility of that evidence. Further, the prejudicial effect of that evidence outweighed its probative value."
Mr Gould, it must be remembered, is a barrister. He is not some ignorant rustic, ignorant of matters of law and procedure. It is ridiculous to suppose that the Tribunal was unaware that it was entitled to attach less weight to evidence untested by cross-examination than to evidence tested before it. The Tribunal was, of course, entitled to receive evidence, even from persons who were not present before it, and we have no reason to suppose they did not discount that to such degree, if any, as they thought appropriate in all the circumstances, given the whole body of evidence that was laid in front of them. We see no arguable error of law in 6.7.[18]Then there is a heading in paragraph 7, it says:
"Please note that my Closing Submissions were submitted in writing after the hearing, as the hearing did not conclude in the time allocated."
What has happened, especially in paragraphs 6.1, 6.2 and 6.5 above, gives the impression that my Closing Submissions were not properly taken into account before a decision was reached. This is contrary to Natural Justice." The Tribunal well knew that it had Mr Gould's written final submissions to take into account. They say, in their paragraph 2:
"We heard from Mr Stillitz in closing argument, supported by a written skeleton, but there was insufficient time to allow Mr Gould a proper opportunity to present his argument. Accordingly, with the consent of both parties, we adjourned into chambers pending the receipt of Mr Gould's submissions and the respondent's comments thereon. Mr Gould has raised a great many issues in his written submissions. We do not attempt to deal with all of them but we confine ourselves to those matters material to our findings."
So the Tribunal, obviously, well knew that it had written submissions to consider and did have them in mind.[19]The fact that the Employment Tribunal was unimpressed by some particular arguments, for example, the attempt to assert and new implied term during the course of those written final submissions, or fails expressly to deal with each of them, does not mean that they were not borne in mind - consider in particular Retarded Childrens Aid Society -v- Day in the Court of Appeal. No error of law was identified in that paragraph 7.[20]Having dealt with all the allegations, sought to be raised in this first Notice of Appeal, and finding no reasonably arguable error of law to emerge therefrom, we dismiss the whole of the first Notice of Appeal even at this preliminary stage.[21]We thus now turn to the second Notice of Appeal, which is directed to the Decision of 26 October 2000. That Decision first sets out the circumstances in which the review came about. They said, looking in particular at page 46 of our bundle "3 It is common ground that the Originating Application raised an issue in relation to the cancellation of a proposed period of work over the Easter Holiday 1999. The Tribunal, in giving its reserved decision, failed to address that issue and that oversight must be corrected. Accordingly, the Tribunal reopens its earlier decision in order to address that issue." The period in question was described by the Employment Tribunal when they described the nature of the contract that they were looking at. Was the Respondent in breach of contract in cancelling an arrangement whereby the Applicant could carry out work for the Respondent between 6 and 20 April 1999.[22]The Tribunal then set the scene and they said this, in their paragraph 4 of page 46:
"4 As set out in the reasons to the earlier decision, the date when Mr Gould was to commence a period of employment by the Respondent had been put back until 26 July 1999. It was proposed and agreed that Mr Gould would, during the Easter holidays 1999, spend a period at the Respondent's offices between 6 and 20 April. It was an informal arrangement without any terms being specified save that Mr Gould would have the opportunity, during that period, to carry out work and acquire experience appropriate to his aim to become a trainee solicitor. Because of the decision to cancel the employment due to commence on 26 July 1999, the Respondent considered that it would not be appropriate that Mr Gould should work over the Easter period and, by letter dated 29 March 1999, Mr Gould was advised of the cancellation of that arrangement."
The Tribunal continued:
"5 During the time up to Easter 1999, Mr Gould had been working as a school master. That had imposed considerable demands and it was not his intention to undertake paid employment during his Easter vacation. 6. We consider that it was an informal arrangement affording Mr Gould an opportunity to be introduced to the practices and procedures operating within the Respondent's office. Although qualified as a barrister, Mr Gould had not practised at the law and his usefulness to the Respondent during the Easter vacation was likely to be limited to administrative matters. The parties did not address their minds to the question whether notice of cancellation of the arrangement would be required. Had they addressed their minds to the question, they would have considered it appropriate to provide that the arrangement was cancellable at will by either side. Mr Gould was placing no reliance on the opportunity to earn additional remuneration and, whilst it might have raised a question mark over the Applicant's commitment, the Respondent could not have reasonably objected had Mr Gould decided the arrangement was no longer suitable to him. Thus, in cancelling the arrangement by letter dated 29 March 1999, there was no breach by the Respondent of its contractual obligation to the Applicant."
As to this part of the Decision of 26 October, Mr Gould raises 6.1 - 6.5. Again, we will refer to them by number rather than reading out each one.[23]As to 6.1, the Chairman indicated that Mr Gould gave no evidence as to the terms applicable to this Easter visit. We do not have all the documents put before the Employment Tribunal but we do have some salient extracts from documents. Thus, at our page 73, we have an extract supplied to us by the Chairman that says:
"I am itching to gain practical experience with you as soon as possible. Would I be able to start working for you one week earlier, i.e. the period Monday 29 th March to Friday 9 th April? I ask since firstly, I am keen to start as soon as possible and secondly as you might welcome the idea …..I would not expect to be paid for it (unless you want me to work then which I would be happy to do)." and then there was oral evidence on the points that we have in Chairman's Notes, and note 117 of the Chairman's Notes says: "
Easter 99. Conrad meeting November 1998. Mr Kemp encouraged me to defer start date and asked me to work over the Easter vacation. I said I was worried at the prospect that it might be used as a trial period. He confirmed it would not. He asked me to get back with dates so period could be agreed. Shortly thereafter agreed 6 - 20 April."[24]We cannot say that the Employment Tribunal erred in law in regarding that as a very informal agreement, an agreement that had no terms agreed as to pay, for example. The Tribunal do not in terms say that there was no contract at all; it could easily have said that had it chosen to. It said it was an informal arrangement, and that does not, of itself, preclude it being a contract, but, as to the terms of the informal arrangement or informal contract, we see no error of law in the Tribunal saying that there was nothing agreed, for example, as to pay.[25]As to 6.2, the ground of appeal is this:
"6.2 The decision" namely the decision of the Employment Tribunal "goes on to state: '….. the arrangement was cancellable at will by either side' …. and '…the Respondent could not have reasonably objected had Mr Gould decided that the arrangement was no longer suitable to him ….' This is not so. It is respectfully submitted that this is inconsistent with the evidence and is therefore wrong in law."
That is a misquotation. The Tribunal said that if the parties had addressed their minds to the subject, they would have considered it appropriate that the arrangement was cancellable at will and that, for example, Mr Gould could not be obliged to turn up if he chose not to. That, of course, is speculation, but with respect, sensible speculation; but, as the Tribunal had expressly held without, in our view, error of law, that no terms were agreed save that Mr Gould would have the opportunity to attend during the agreed period, it seems to us to be arguably an error of law to speculate, however sensibly, on what an unagreed term would have been and then to rely upon that unagreed term to negative alleged breach. If the only agreed term was, as the Tribunal held, that Mr Gould would have the opportunity to attend and acquire experience over the given period, then it seems to us prima facie a breach of that informal contract or arrangement to deny him that opportunity to attend, albeit unpaid, whether on notice or not.[26]Subject to the points we next mention, that seems to us, therefore, an arguable area to go for to a full hearing. It is hard to see how the loss is likely to be of any significance, but that is another issue. Was there a contract though? And if there was, was it a contract of employment as to this brief Easter unpaid period? As we said earlier, the Tribunal does not in terms say that there was no contract, or that if there was a contract, it was not one of employment. We think that at this stage we ought to assume in Mr Gould's favour, those two possibilities. And so, on that basis, we see it appropriate that 6.2 may go to a full hearing.[27]Next, we look at 6.3. No term of notice was agreed. The law is therefore only that reasonable notice has to be given. The employment, still assuming it to be that, was to be only for some fourteen days, and was to be unpaid. Notice of cancellation was given on 29 March for 6 April. If any notice was applicable, we cannot see that the notice given for so ephemeral and informal a kind of employment was unreasonable and for Mr Gould to argue, as he does, for a whole month's notice seems to us to be hopeless as an implication; we see no arguable error of law in 6.3.[28]In 6.4, Mr Gould was to attend for fourteen days over the Easter vacation. He was not a solicitor, he was a non-practising barrister who had been employed outside the law for some while. The Employment Tribunal held that it was an opportunity for him to acquire experience appropriate to his wish later to become a trainee solicitor. The Employment Tribunal's conclusion seems to us an entirely reasonable conclusion of fact, devoid of any error of law.[29]In 6.5, whether the parties addressed their minds to it, is a secondary issue. The Employment Tribunal held that no terms were agreed, save that Mr Gould would have the opportunity which the Employment Tribunal had described. We see nothing in the evidence which is before us to suggest that some particular form of notice of cancellation was agreed. But, as we have indicated, 6.2 is to go forward, or may go forward to a full hearing, on the basis that there was arguably no way in which properly, either on notice or not, Mr Gould could have been denied the opportunity to attend for the fourteen days. So apart from 6.2, all other items, 6.1 -6.5 are dismissed here and now as not containing within them any arguable error of law.[30]On 6.6, the Tribunal said this:
"7 We now turn to the question of remedy. The parties are agreed that, had Mr Gould been given the opportunity to work his period of notice after taking up the employment on 26 July 1999, he would have earned the sum of £1,265 net. Mr Gould suggests that that does not satisfy his loss for the following reasons …"
In fact that £1,265 was awarded to Mr Gould, together with interest for some £84 odd. So Mr Gould has been compensated for not having been given the due period of notice. He has had the pay he would have received in lieu of notice.[31]But that is not the end of the matter before the Tribunal, because the Tribunal go on to say this:
"Training. Mr Gould suggests that he should be compensated for the lost opportunity to acquire training whilst working for the Respondent during the month in which he would have served out his period of notice. Mr Gould was not to enter into a training contract with the Respondent until some unspecified date in the future and that remained subject to contingencies. Undoubtedly, Mr Gould would, during that period, acquire training and experience of some value to him. That value is so small as to be incapable of quantification and we are prepared to treat it as de minimis; that is as a trifle with which the law should not concern itself"
Plainly, Mr Gould had put no computation of this alleged loss before the Employment Tribunal. In the absence of evidence of the actual loss claimed - and it is for an applicant to make good his claim, the onus is on him - that would be what used to be called a "forty shilling claim", namely a nominal breach of contract, but with no specific proven loss flowing from it. We see no error of law in the Tribunal's conclusion on that point.[32]Accordingly, 6.2 of the Notice of Appeal of 11 December may go to a full hearing, but everything else is dismissed here and now, as not disclosing any arguable error of law. Mr Gould would be wise to reflect on whether it was worth taking 6.2 to a full hearing, given the improbability, as it would seem to us, of anything of any real value emerging in his favour, but we give him the ability to take 6.2 to a full hearing if he so chooses. It just remains to give conventional directions, if there is to be a full hearing of 6.2. It alone would be proper to be ruled upon by a Tribunal at that full hearing, unless the Employment Appeal Tribunal, on that occasion, specifically rules otherwise. Skeleton Arguments are to be exchanged not less than fourteen days before the hearing, the matter is Category C, and the estimate is one hour. It is now 11.17 a.m, we have still heard nothing further from Mr Gould - there is no reason to believe, for example, that he has sought to get here, but has been delayed. As far as we know, there has been a deliberate choice not to attend, and we record that just to make that clear.