MS U RINIKER v WAYMARK HOLIDAYS LTD [2003] UKEAT 0061_03_0105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0061_03_0105Case No Appeal No. EAT/0061/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS U RINIKERAPPELLANTWAYMARK HOLIDAYS LTDRESPONDENT
Before
His Honour Judge Peter Clark Mr P R A JacquesDate 1 May 2003
[1]APPEARANCES For the Appellant MR RINIKER In Person For the Respondent JUDGE PETER CLARK This is an appeal by Ursula Riniker, the Applicant before the Reading Employment Tribunal, chaired by Mrs J Hill, against that Employment Tribunal's decision, promulgated with Extended Reasons on 9 October 2002, dismissing her various claims brought against the Respondent, Waymark Holidays Ltd. The Employment Tribunal Proceedings[2]The Applicant commenced these proceedings by an Originating Application dated 3 June 2002. Her claims are summarised in Box 1 in this way:
"Wrongful dismissal in breach of contract and unfair dismissal, both as a result of claiming a statutory right, and failure to pay wages or quantum meruit and breach of statute."
[3]She developed those heads of claim in particulars attached to the application and described her employment with the Respondent as commencing in about 1988 and terminating at some date in 2002; her job was said to be Seasonal Leader of alpine summer walking and winter cross-country skiing holidays.[4]The claims were resisted. By their Notice of Appearance the Respondent contended first that the Applicant was not an employee; secondly she did not have sufficient continuous employment to claim unfair dismissal protection and thirdly that no contract existed between the parties which could have been breached.[5]On 29 July 2002 the Employment Tribunal gave notice to the parties of a hearing fixed for 3 October 2002, limited to consideration of 2 preliminary issues; first, whether the Applicant was an employee of the Respondent and secondly her length of service.[6]Prior to the hearing held before Mrs Hill's Employment Tribunal on 3 October the parties had exchanged witness statements. The only witnesses were the Applicant and for the Respondent, their Managing Director, Peter Chapman. In addition the Applicant attached documents to her witness statements and there was an agreed bundle of documents.[7]At the hearing, the Applicant appeared in person and Mr Chapman represented the Respondent. The Chairman proposed that, instead of giving oral evidence, the following procedure be used. Each party would be given an opportunity to comment further on his or her statement and on the other parties' statement. The Chairman records, in paragraph 2, of the Employment Tribunal's reasons, that both parties agreed to that course of action. Ms Riniker tells us that she did not dissent but neither did she agree to that procedure. The facts[8]The Employment Tribunal made the following material findings of fact. The Respondent, a commercial organisation, organises walking and cross country skiing holidays abroad. Each party or group of walkers or skiers is in the charge of an experienced leader, who is responsible for the group from landing at the airport and throughout the holiday.[9]On 26 March 1990 the Applicant was interviewed and her name added to the list of volunteer leaders. Thereafter, so the Employment Tribunal found, she led some 22 holidays over the next 12 years. She received no fee or payment for her work but did receive all expenses, including flights to and from the holiday destination, hotel costs, local transport, lunches and telephone call charges.[10]Although not dealt with in the Employment Tribunal's reasons the relationship between the parties ended in the following circumstances. The Respondent apparently purchased an air ticket for the Applicant's flight to lead a holiday in Switzerland in December 2001. The Applicant bought her own ticket and claimed a refund from the company. That refund was paid, grudgingly it would appear, but Mr Chapman then decided that he would not use Ms Riniker's guiding services again. He told her so by letter dated 14 January 2002. Her response was that(a) she had been unfairly dismissed and(b) the Respondent was in breach of contract, in that she had been appointed to lead a party at Bettmeralp, Switzerland between 10-17 August 2002 The Employment Tribunal Decision[11]The right not to be unfairly dismissed under s94 Employment Rights Act 1996 (ERA) applies only to employees. 'Employee' is defined in s230 ERA as an individual who works under a contract of employment, that is a contract of service for present purposes.[12]Thus the first preliminary issue before the Employment Tribunal was whether the Applicant worked under a contract of service at all material times.[13]The Employment Tribunal noted, at paragraphs 8-10 of their reasons, from the form completed by members of the leader panel and the notification to leaders by the Company;(a) that whether or not a panel member opted to make him or herself available for the forthcoming season was a matter for them and(b) the notification to leaders applying to lead on a particular holiday that he or she might do so was subject to the qualification "At present we do not have enough bookings to confirm that your holidays are operating but we will let you know the position as soon as is definite one way or the other".[14]At the outset of the hearing the Chairman referred the parties to the Court of Appeal decision in Stevedoring and Haulage Services Ltd v Fuller [2001] IRLR 627 , following the House of Lords' decision in Carmichael v National Power PLC [2000] IRLR 43 , affirming the now well-settled principle that mutuality of obligations, the employer to provide work and the employee to perform it, is an irreducible minimum for a contract of employment.[15]Based on that principle the Employment Tribunal found that there was no mutuality of obligations between the parties. Consequently the Applicant was not an employee.[16]The consequence of that finding alone was(a) that the Applicant could not claim unfair dismissal protection under s94 ERA and(b) we would add, could not bring a claim of breach of contract, that right also being limited to employees; See the Industrial Tribunals (now Employment Tribunals) Extension of Jurisdiction (England & Wales) Order 1994.[17]It followed, from the finding that the Applicant was not an employee of the Respondent, that it was unnecessary to decide the second preliminary issue, the question of continuity of employment. As we read the Employment Tribunal's reasons they did not decide that point. As to whether the question of continuity would otherwise have resolved the unfair dismissal complaint, we would observe simply that the Applicant sought to put that complaint on the basis of dismissal for asserting a statutory right (the 'Wages Act' claim for unlawful deductions from wages under s13 ERA contrary to s104 ERA, an automatically unfair reason for which no continuous period of employment is necessary; see s108(3)(g)).[18]That left only the Wages Act claim. Although not one of the preliminary issues identified for hearing on 3 October that claim was, upon analysis, bound to fail in that the arrangement between the parties never provided for the payment of wages, as defined in s27(1) ERA. The Employment Tribunal found that the Applicant received expenses only and any claim therefore was excluded by s27(2)(b) ERA. For that reason they dismissed that claim also. Employment Appeal Tribunal Procedural History[19]Against the Employment Tribunal decision the Applicant appealed by a Notice dated 20 November 2002, setting out 22 grounds of appeal.[20]On 20 November 2002 His Honour Judge Altman gave directions on paper for the conduct of the appeal. Material for present purposes were the following directions:
"1. This appeal is set down for a preliminary hearing in accordance with paragraph 9(7) of the Employment Appeal Tribunal Practice Direction at which the appellant will be heard ex parte. 2. The preliminary hearing of this appeal be heard before a judge and two members. 3. The Notice of Appeal must be served on the respondent and that the respondent may lodge with the Employment Appeal Tribunal and serve on the appellant concise written submissions in opposition for consideration at the preliminary hearing within 14 days of the seal date of this Order, dedicated to showing that there is no reasonable prospect of success for any appeal. 5. Under paragraph 9 of the Employment Appeal Tribunal Practice Direction the appellant must lodge with the Employment Appeal Tribunal and serve on the respondent an affidavit giving details of the alleged bias or improper conduct within 14 days of the seal date of this Order and in default grounds 6.9, 6.10 and 6.22 of the Notice of Appeal be dismissed. Upon receipt by the Employment Appeal Tribunal of such affidavit the chairman and members of the relevant Employment Tribunal will be asked for their comments for the purpose of the preliminary hearing and the Respondent may if so advised lodge with the Employment Appeal Tribunal and serve on the appellant an affidavit in response. 9. Liberty to the parties to apply on notice to each other on paper to the Employment Appeal Tribunal to vary or discharge this Order."
[21]That order (the first directions order) was sealed on 7 February 2003 and sent to the parties.[22]The Applicant did not comply with paragraph 5 of the first directions order in that she did not lodge an affidavit giving details of alleged bias or improper conduct on the part of the Employment Tribunal within 14 days of the first directions order (or at all). Accordingly grounds 6.9, 6.10 and 6.22 were dismissed by virtue of paragraph 5 of the order.[23]On 5 March 2003 the Applicant made application in writing for paragraph 5 of the first directions order to be deleted on the grounds that it was wrong in law and perverse. The basis of that application was first that paragraph 9 of the new Practice Direction (that issued by Burton P on 9 December 2002) provided no authority for the order made at paragraph 5 and secondly that no allegation of "bias or improper conduct" was contained in grounds 6.9, 6.10 or 6.22 of the Notice of Appeal.[24]That was followed by a further application dated 16 March 2003 (both this and the application dated 5 March being made under the liberty to apply provision at paragraph 9 of the first directions order).[25]In the later application she sought revocation of paragraphs 1 and 3 of the first directions order on the basis that the principle of Preliminary Hearings in the Employment Appeal Tribunal offends the right of appeal contained in s21(1) of the Employment Tribunals Act 1996 and she took a point on the threshold applied for cases to proceed from a Preliminary Hearing to a full hearing with both parties present.[26]Those applications were put before me, as the judge assigned to conduct the Preliminary Hearing, with members, fixed for 28 March. I considered those applications on paper and directed, by an order sealed on 24 March, that paragraphs 1 and 3 of the first directions order would stand; the Preliminary hearing would proceed on 28 March; and grounds 6.9, 6.10 and 6.22 would stand dismissed. I also gave a further direction for the lodging of a skeleton argument and trial bundle. In the event Ms Riniker lodged a bundle in advance of the hearing and indicated that her grounds of appeal would stand as her skeleton argument. No point turns on those matters.[27]After making those orders the Applicant lodged by hand a further application dated 23 March and received on 24 March, asking that her earlier applications be dealt with at the hearing on 28 March; there be an order for Chairman's notes of evidence; an order for disclosure on the part of the Respondent and for the Employment Appeal Tribunal hearing to be tape-recorded.[28]Upon receipt of my directions order (the second directions order) the Applicant applied by letter dated 25 March for that order to be discharged. By letter dated 26 March she made a further application for an order that the Respondent provide his recollection of the events referred to in grounds 6.9, 6.10 and 6.22 of the Notice of Appeal. Applications[29]At the hearing held on 28 March the Applicant did not pursue her applications for the proceedings to be tape-recorded (it is not our practice to do so and we would not have made an exception in this case, no evidence being given); for the Chairman's notes of evidence (as earlier recorded, no oral evidence was heard below) or for disclosure by the Respondent.[30]However, we considered the application to discharge my order of 24 March, during the course of which the following procedural issues arose: (1) Discharge of paragraph 5 of the first directions order.[31]It is to be observed that at no time has the Applicant applied for an extension of time for complying with the order to file an affidavit, whether before or since expiry of the 14 day time limit. Her case is that she is not to be required to lodge an affidavit at all. The order should be revoked.[32]The first point taken is that there is no power under paragraph 9 of the Employment Appeal Tribunal Practice Direction to order an appellant to serve an Affidavit. True it is that paragraph 9 of the latest Practice Direction, issued by Burton P on 9 December 2002 does not deal with the filing of Affidavits. The relevant direction is now contained in paragraph 11 of that Practice Direction. Paragraph 11(1) provides:
"An Appellant who intends to complain about the conduct of the Employment Tribunal (for example bias, apparent bias or improper conduct by the Chairman or lay members or any procedural irregularity at the hearing) must include in the Notice of Appeal full particulars of each complaint made."
Paragraph 11(2) provides that a Judge, on sifting an appeal, may direct the Appellant to provide an affidavit setting out full particulars of all allegations or bias or misconduct relied upon. Thereafter comments may be sought from the Chairman and/or members of the Employment Tribunal (paragraph 11(3)(a)) and an affidavit may be required from the Respondent (paragraph 11(3)(b)). In the event of a factual dispute as to what occurred before the Employment Tribunal the deponents, but not the members of the Employment Tribunal, may be required to attend a hearing before the Employment Appeal Tribunal where they may be cross-examined and findings of fact made by the Employment Appeal Tribunal. Facey v Midas Retail Security [2000] IRLR 812, paragraph 39 per Lindsay P.[33]The provisions of paragraph 11 of the latest Practice Direction follow on from paragraph 9 of the earlier Practice Direction issued by Mummery P on 29 March 1996. In particular, paragraph 11(1) substantially repeats paragraph 9(1) of the earlier Practice Direction. The requirement of an Appellant to file an Affidavit in support of the allegations of bias or procedural irregularity follows paragraph 9(3) of the earlier Practice Direction.[34]What seems to us to have happened is that Judge Altman made the first directions order before the new Practice Direction was issued, and the reference to paragraph 9 of the Practice Direction is a reference to the earlier Practice Direction. However, the order was sealed after the new Practice Direction was issued.[35]For the avoidance of doubt we are satisfied that the practice of ordering an Appellant to lodge an Affidavit complies both with paragraph 9 of the earlier Practice Direction and paragraph 11 of the later Practice Direction.[36]The Applicant does not, in principle, challenge that practice. She accepts that where an allegation of bias on the part of the Employment Tribunal is alleged, both parties should give their account of what happened below in the appeal proceedings. Indeed, we think it significant that in her most recent further application dated 26 March 2003 the Applicant seeks an order that the Respondent (for this purpose, we think, Mr Chapman) recollects all or any of the events stated in paragraph 6.9, 6.10 and 6.22 of the Notice of Appeal and to state if his recollection differs from hers.[37]However, she submits that her grounds of appeal, in particular grounds 6.9, 6.10 and 6.22 do not raise allegations of bias against the Employment Tribunal and thus no requirement for an affidavit arises. We accept that bias is not alleged. The question is whether those grounds raise allegations of misconduct or procedural irregularity on the part of the Employment Tribunal and in particular the Chairman.[38]Ground 6.9 alleges, as we have earlier observed, that whilst the Applicant did not protest the Chairman's suggestion that there be no cross-examination of the witnesses, neither did she renounce the adversarial nature of proceedings and her right to reply to the Respondent's submissions, rights which she contends are included in the right to a fair trial enshrined in Article 6(1) ECHR, now part of domestic law following implementation of the Human Rights Act 1998 (HRA). To say that the parties agreed to that proposed course was, she contends, 'completely false'. Pausing there it is clear to us that the Applicant is here alleging(a) a procedural irregularity, amounting to a breach of her right to a fair trial and(b) 'misconduct' on the part of the Chairman in recording an agreement between the parties and the Employment Tribunal reasons which were 'completely false'. In these circumstances, consistent with the Employment Appeal Tribunal's practice, Judge Altman was right, in our view, to adopt the Affidavit procedure.[39]Ground 6.10 is a complaint that the Applicant was not permitted to reply to Mr Chapman's submissions below. Again Article 6(1) ECHR and the HRA is invoked. That is an allegation of procedural irregularity; the Affidavit procedure is appropriate.[40]Finally, ground 6.22 alleges that the Chairman falsified facts in the Employment Tribunal's reasons. That is an allegation of misconduct and procedural irregularity, calling for Affidavit evidence under the Practice Directions.[41]It follows, in our judgment, that the order made at paragraph 5 of the first directions order was correctly made, subject to the sanction imposed for non-compliance.[42]We repeat, the Applicant has not asked for an extension of time for complying with the order; she contends that it was wrongly made. We disagree for the reasons given earlier.[43]Like any Court or Tribunal the Employment Appeal Tribunal's orders are made to be complied with. In the case of non-compliance, by Rule 26 of the Employment Appeal Tribunal Rules 1993 as amended, the Employment Appeal Tribunal may order that the party in default may be debarred from taking any further part in the proceedings or may make such other order as it thinks just. In our view that includes the power to strike out all or any grounds of appeal.[44]The need for such a sanction is exemplified by the present case. From time to time the Court of Appeal has criticized the Employment Appeal Tribunal for delay; it is a truism that justice delayed is justice denied. It is axiomatic that any judicial procedure must be fair to all parties.[45]The procedure contained in paragraph 11 of the new Practice Direction is required to allow this Appeal Tribunal to determine as a fact what took place below where bias, misconduct or procedural irregularity is alleged; that necessarily extends the time for determining the appeal. The approach, which attracted me in Roberts v United Friendly Insurance Plc (13 June 1996, unreported) to accept the word of the Chairman as to what happened below, has not survived the guidance given by a very strong Court of Appeal in Locabail (UK) Ltd v Bayfield [2000] IRLR 96 ; applied in Facey , paragraph 35. If the procedure described earlier is to be followed then it is essential that parties comply with all directions given, not refuse to do so. Otherwise unnecessary delay will follow.[46]In these circumstances we affirm the direction which I gave that these grounds of appeal, 6.9, 6.10 and 6.22 do stand dismissed. (2) We have reached that conclusion having considered the further submission by Ms Riniker; that neither Judge Altman nor I are authorised to hear a case brought under Article 6(1) ECHR and HRA by virtue of CPR Part 2 PD.B paragraph 7A, which provides:
"A deputy High court Judge … may not try – (1) A case in a claim made in respect of a judicial act under the HRA 1998, or (2) a claim for a declaration of incompatibility in accordance with s4 of the HRA 1998."
[47]Ms Riniker accepts that (2) does not apply in this case. Interestingly, although it does not arise for determination and no argument has been heard it is reasonably clear that the power to make such a declaration is not given to Tribunals, including the Employment Appeal Tribunal, (see HRA s4) and therefore cannot be exercised in this jurisdiction, even by a High Court Judge.[48]Rather, submits Ms Riniker, this case falls within (1) above. We do not accept that it does.[49]By s7(1) HRA a person who claims that a public authority (which includes a Court or Tribunal: s6(3)(a)) has acted … in a way which is made unlawful by s6(1) HRA (acting in a way which is incompatible with a Convention Right) may –(a) bring proceedings against the authority under HRA in the appropriate Court or Tribunal, or(b) rely on the Convention right or rights concerned in any legal proceedings (which includes an appeal against the decision of a Court or Tribunal: s7(6)(b)).[50]In our view CPR Part 2 PD.B paragraph 7A is concerned with claims under s7(1)(a) of HRA against the appropriate authority. See e.g. Marcic v Thames Water Utilities [2001] 3 AER 698 (TCC); later upheld by the Court of Appeal.[51]In the present appeal Ms Riniker is not bringing a claim against the Employment Tribunal under the HRA (a claim in respect of which the Employment Appeal would not have jurisdiction) but instead seeks to rely on her rights under Article 6(1) ECHR and HRA 1998 in the appeal (HRA s7(1)(b)).[52]Thus, whilst coincidentally both Judge Altman and I, as Circuit Judges, also sit in the High Court Queens Bench Division, being authorised to do so by the Lord Chancellor under s9(1) Supreme Court Act 1981, we are not prevented from sitting on the Employment Appeal Tribunal, being authorised to do so under what is now s24 of the Employment Tribunals Act 1996, to consider a point raised by a party in the appeal in accordance with s7(1)(b) HRA; the position in the present case. (3) Next, Ms Riniker challenges the Employment Appeal Tribunal practice of holding ex parte Preliminary Hearings. Her submission is that this practice, referred to at paragraph 9(7)-(18) of the current Practice Direction; (formerly paragraph 14 of the 1996 Practice Direction), imposes what amounts to a requirement of permission to appeal, imposed by the Employment Appeal Tribunal without the approval of Parliament. She relies here upon s21(1) of the Employment Tribunal Act 1996.[53]We do not accept that submission. The key distinction between the Employment Appeal Tribunal Preliminary Hearing procedure and the permission system in the High Court and Court of Appeal is that whereas no further appeal lies against the refusal of permission in the latter cases; in the case of the Employment Appeal Tribunal an order dismissing the appeal, following a hearing, at the Preliminary Hearing stage is then subject to appeal, with permission, to the Court of Appeal. It follows that the Employment Appeal Tribunal Preliminary Hearing system is not akin to the permission system elsewhere.[54]As to s21(1) Employment Tribunal Act, that provision limits the Employment Appeal Tribunal's jurisdiction to hearing appeals on a question of law only. If an appeal is dismissed at the Preliminary Hearing stage it would be on the basis that no error of law is made out. That decision is, as we have observed, subject to correction by the Court of Appeal on further appeal. (4) On a slightly different point, Ms Riniker points out that the threshold to be crossed by Appellants (or respondents in the case of a cross-appeal) at the Preliminary Hearing stage before the case will be allowed to proceed to a bilateral full hearing, has been variously described. Paragraph 9(7) of the new Practice Directions speaks of the appeal having 'a reasonable prospect of success at a Full Hearing', whereas the Guidance Notes tell appellants that at the Preliminary Hearing they will need to satisfy the Tribunal that it is reasonably arguable that the Employment Tribunal made an error of law and in a letter sent with the first directions order that the appeal is arguable. Paragraph 14(5) of the 1996 Practice Direction required a reasonably arguable point of law raised by the appeal, failing which the appeal would be dismissed at the Preliminary Hearing stage.[55]We see no material difference; to be arguable an appeal must be reasonably arguable; that is to say, it must have a reasonable prospect of success.[56]In any event, we repeat; if an appeal is dismissed at the Preliminary Hearing stage it is adjudged not to raise an error of law. If that judgment is wrong it can be corrected by the Court of Appeal. If the case is allowed to proceed to a Full Hearing the Appellant can have no complaint. (5) One further point is taken on the ex parte Preliminary Hearing procedure. Ms Riniker has referred us to the new practice, introduced in the 2002 Practice Direction, paragraph 9(8), which permits the Respondent to an appeal to lodge written submissions and response to the Notice of Appeal showing that the appeal has no reasonable prospect of success. Ms Riniker submits that that practice is inconsistent with an 'ex parte' procedure when only side is heard. In fact, the Respondent has not taken up the opportunity to lodge written submissions in the present case.[57]Whilst we continue to use the pre CPR expression 'ex parte' in circumstances where the Respondent to the appeal has no right of audience at the Preliminary Hearing, save as to directions for the future conduct of the appeal, we do not consider that that procedure, designed to save expense for a Respondent in an appeal which ultimately fails, excludes written representations by the Respondent to which the Appellant has every opportunity to respond at the oral Preliminary Hearing. On the other hand it may avoid an appeal which turns out to be without merit proceeding to an unnecessary bilateral hearing.[58]Thus, having considered and rejected the various procedural objections raised by Ms Riniker in this appeal, we turn now to the substantive grounds of appeal. The substantive appeal[59]We begin with the principal point taken by the Applicant in attacking the Employment Tribunal's conclusion on the preliminary issues. Based on her grounds of appeal, oral submissions and further written representation dated 30 March 2003, which we have taken into consideration in reaching our reserved decision in this case, we understand her to put her case on appeal in this way.[60]The Employment Tribunal, and in particular the Chairman, completely misunderstood the way in which the Applicant put her claims for unfair dismissal and wrongful dismissal. She did not contend that she had continuous employment with the Respondent. She did not need to. Her claim of unfair dismissal was brought on the basis that she was dismissed by the Respondent for an inadmissible reason; asserting a statutory right (ERA s104). Pausing there, the basis for that claim must be that she had complained to the Respondent that they had not paid her 'wages' in the form of the air fare incurred in making her own way to Switzerland in December 2001. We shall assume for present purposes that such a claim was not misconceived. No qualifying period of continuous employment is required for such a claim.[61]Similarly, no qualifying period is required for her common law claim of wrongful dismissal (breach of contract). The contract allegedly breached was that for her to lead a party in August 2002.[62]In these circumstances, submits Ms Riniker, the case of Stevedoring & Haulage Services Ltd v Fuller , on which the Employment Tribunal relied is nothing to the point. That was a case concerned with what has been termed a global, over-arching or 'umbrella' contract; that is, a series of short-term engagements which may be joined together to create an overall contract of employment. The question there is whether there is the necessary mutuality of obligation to create a continuous contract of employment.[63]That being the Applicant's case, we must examine the question raised in the first preliminary issue before the Employment Tribunal; whether the Applicant is an employee?[64]We deal first with the unfair dismissal claim. The Applicant must show, in order to bring a claim of unfair dismissal under s104 ERA, that she was an employee of the Respondent at the relevant time.[65]On the Applicant's case, set out in her Originating Application, the effective date of termination (EDT) of the alleged contract of employment was a date between 14 January 2002 and the date of the Originating Application, 3 June 2002. Thus the question is whether she was at any time employed by the Respondent under a contract of employment during that period.[66]Having accepted that there was no continuity of employment between holidays which she led and the last holiday having been from 23 December 2001 to 2 January 2002, the Applicant cannot establish employment at the effective date of termination unless she can rely on the proposed holiday at Bettmeralp between 10-17 August 2002.[67]We note that within the bundle of authorities lodged by the Applicant is the case of Sarker v South Tees Acute Hospitals NHS Trust [1997] IRLR 328 . That case is authority for the proposition that a person engaged under a contract of employment to start work at a future date can claim unfair dismissal if the contract was terminated by the employer for an inadmissible reason (not requiring a period of qualifying service) before that date. Further, it is well-established at common law (see Hochster v de La Tour [1853] 2 E &B 678; referred to in Sarker , paragraph 14) that a claim for damages for anticipatory breach of contract will lie where a contract of employment has been entered into between the parties, with performance to commence at a later date after termination by the employer.[68]On this basis Ms Riniker would claim to overcome the lack of continuity due an absence of mutual obligations between contracts applying the principles in Sarker .[69]The difficulty with that case in law is that it founders on the facts. At paragraph 9 of their reasons the Employment Tribunal said:
"The Respondent's notification to leaders of holiday she/he might lead specifically includes the terminology "
At present, we do not enough bookings to confirm that your holidays are operating but we will let you know the position as soon as it is definite one way or the other". We were satisfied that this meant that whilst there was an offer to lead a holiday that was accepted by the respondent there was a condition precedent that required that enough walkers booked the holiday for the holiday in fact to take place. If the holiday did not take place there was nothing that could be enforced by the applicant to entitle her to be able to pursue the matter further."[70]The Respondent's notification to leaders in respect of the Bettmeralp holiday planned for 10-17 August 2002 was contained in the agreed bundle of documents before the Employment Tribunal and appears at page 32 of our bundle. It is dated 18 September 2001, referring to Summer 2002. The finding of the Employment Tribunal was that no binding contract was entered into between the parties for the Applicant to lead the Bettmeralp holiday. It was subject to cancellation if insufficient customers wished to join the holiday. It was not confirmed before the Respondent withdrew its invitation for the Applicant to lead that holiday, on the evidence.[71]In our judgment that finding of fact cannot be impugned on appeal.[72]Thus, in the absence of a binding contract to lead the August holiday (assuming that to be 'employment') and in the absence of continuity between short-term engagements the Applicant is unable to show that she was employed under a contract of employment at the effective date of termination. The claim for unfair dismissal accordingly fails. Similarly she cannot bring a claim for damages for anticipatory breach of a contract of employment in the absence of a contract for future performance having been entered into between the parties.[73]In these circumstances the Employment Tribunal was right to find that the answer to the first preliminary questions was that the Applicant was not an employee for the purposes of her claims of both unfair dismissal and wrongful dismissal.[74]It also follows that the Employment Tribunal's findings as to the number of holidays which the Applicant led; the equipment which she provided and her 'volunteer' status, referred to in the grounds of appeal, are immaterial to the real issues in this appeal. Wages Act Claim[75]In her further submissions dated 30 March 2003 the Applicant states:
"The issue of wages will have to be considered after the issue of whether there are enforceable contracts of employment in this case has been resolved on appeal in the EAT and that can only be done at a full appeal hearing."
[76]We have noted that the Employment Tribunal hearing was convened to hear 2 preliminary issues only; whether the Applicant was an employee and whether she had continuity of employment. It was therefore a surprise to see that, at paragraphs 14-15 of their reasons, the Employment Tribunal dismissed the wages claim.[77]We do not detect, within the Applicant's grounds of appeal, any procedural complaint that the Employment Tribunal took that course. However, even where such a complaint to be raised we should not interfere with that part of the Employment Tribunal's decision for these reasons.[78]The Respondent paid the Applicant's fare in respect of the December holiday. Leaving aside the point that that was by way of expenses and not wages (ERA s27) there was no outstanding sum due to the Applicant at the termination date.[79]Secondly, she expressly conceded, at paragraph 5 of her details of complaint attached to her Originating Application:
"Those who have been leading for Waymark holidays, such as myself, have received no "wages" as defined in s27 of the Employment Right Act 1996."
[80]Thirdly and in any event the claim was for the value of the August 2002 holiday, valued by the Applicant in an addendum to her Originating Application dated 6 June 2002 in total at £683. That claim could only be a claim for breach of contract (which fails for the reasons given earlier); it could not be a claim for unlawful deduction of wages post-termination. See Delaney v Staples [1992] IRLR 191 (HL).[81]In these circumstances it would not be proportionate to permit the issue of the Wages claim to proceed to a full hearing at the Employment Appeal Tribunal with a view to allowing the appeal and remitting that claim to an Employment Tribunal for hearing in circumstances where it would then be bound to fail. Conclusion[82]It follows, notwithstanding the thoughtful and courteous presentation made by Ms Riniker, that in our judgment no arguable ground of appeal, whether procedural or substantive is made out at this Preliminary Hearing. The underlying claims have no basis in fact and law; the Employment Tribunal was right to dismiss them. This appeal is dismissed.

Cited in 2 later judgments