Appeal No.	 EAT/174/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 April 1997

Before
HIS HONOUR JUDGE D M LEVY QC
MRS P TURNER OBE
MR K M YOUNG CBE

MR A P DERRETT	APPELLANT

MR J H HIGGINS	RESPONDENTS
T/A COLLINS AND HIGGINS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR G PRICHARD
(Counsel)
Messrs Andrew Maynard & Co
Solicitors
11 Manvers Street
Bath
BA1  1JQ	

			JUDGE LEVY QC:   On 16 October 1996 Mr Andrew Paul Derrett lodged an application - received that day by an Industrial Tribunal - claiming he had been unfairly dismissed, a redundancy payment and damages for breach of contract.  Appearance was entered by the alleged employer, Mr J H Higgins, trading as Collins and Higgins, which was received by the Tribunal on 22 October 1996.  

	There was a hearing on 3 December 1996 by a Chairman, sitting alone, when he dismissed the application.  The ground on which he dismissed it was that the case raises a point as to whether Mr Derrett was employed or was not employed.  The Chairman decided that against the Applicant. 

	An appeal was lodged against the decision on 28 January 1997 raising two points.  The first was that the Chairman should not have heard the appeal sitting alone.  Secondly, and in any event if he did have jurisdiction to hear the appeal, the Chairman’s decision was wrong.  

	As to the second point, on a preliminary hearing, we are satisfied that there is a point to go forward.  Mr Prichard who did not appear below but who has appeared before us this morning, has, in his admirable Skeleton Argument and his unusually long grounds of appeal has satisfied us that there is a point which is now found at ground 6.7 H on ‘employee status to go forward’.  Mr Prichard has agreed to amend the Notice of Appeal, so as better to identify that ground when the matter is restored for the full hearing of the appeal.

	As to the first point, Mr Prichard seeks to argue that the decision in Tsangacos v Amalgamated Chemicals Ltd [1997] IRLR, is wrong, and that the decision in Mobbs v Nuclear Electric plc [1996] IRLR 536, is right.  
	He has, in support of his submissions that Mobbs is right, referred us to the case of Tesco v Patel, reported in The Times of 15 March 1986.  That case says that where there is a conflict of affecting written cases that the conflict cannot be resolved on written submissions.  In our judgment that does nothing to suggest Mobbs is right and Tsangacos is wrong.  In our judgment, where a court of equivalent jurisdiction has heard arguments on the correctness of a decision which raises the same point as the decision before the court, a court hearing a further application on the same point should follow the later case, unless convinced that the later case is per incuriam.  We have not been so convinced by Mr Prichard.  We therefore do not think it proper to allow the appeal to go forward on the ground that the Chairman did not have jurisdiction sitting alone to determine the point in issue.  

	Mr Prichard is anxious to preserve his position on appeal, without the Court of Appeal being troubled by an appeal against the decision at this stage.  In order to cater for this, we will extend the time for an appeal against the decision which we are giving this morning, until after the determination of the full appeal, which we have directed should go ahead.