Appeal No.	 EAT/807/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR E HAMMOND OBE
MR J C SHRIGLEY

JOANNA DAVIDSON	APPELLANT

(1) WOOLWICH PLC (2) BADENOCH & CLARK	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT	

	JUDGE PETER CLARK:	By an Originating Application presented on 31st December 1997 the appellant, Ms Davidson, a solicitor, brought claims for unlawful deduction from wages, alternatively breach of contract in respect of non-payment of a bonus, and for breach of contract in respect of the unexpired portion of an alleged fixed term contract against Woolwich Plc [“Woolwich”] alternatively Badenoch and Clark [“B & C”]. A fellow solicitor, Ms Steele, brought a claim in lieu of notice against the same respondents.

	The appellant was abroad in Australia when the Ashford Employment Tribunal sent out a notice of hearing dated 24th February 1998. That notice informed the parties that a hearing would take place, in this case on 6th April, limited to the question of whether either of the respondents and if so which of them employed the appellant. On 25th March the appellant wrote from Australia, asking for a postponement of the hearing. That letter did not arrive until 9th April. On 27th March she telephoned the Employment Tribunal informing the tribunal that she had written a letter asking for a postponement. On the same day the tribunal ordered the cases of the appellant and Ms Steele to be heard together.

	On 6th April the consolidated cases came on for hearing before a Chairman, Mr G W Davis, sitting alone. He decided to proceed with both cases, notwithstanding the appellant’s absence abroad. In a decision with extended reasons dated 27th April 1998 [“the first decision”], he made the following findings: neither applicant was employed under a contract of service, either by Woolwich or by B&C; further, the appellant was not entitled to a bonus from Woolwich. In the course of his reasons, at paragraph 20, he also found that the appellant was not employed for a fixed term.

	A copy of the first decision was sent to the appellant in Australia under cover of a letter which bears the date 2nd April but must, we think, have been sent on or after 27th April. By letter dated 10th May the appellant applied for a review of the first decision on the grounds that the hearing on 6th April took place in her absence. She also pointed out that the hearing was limited to a preliminary issue as to whether or not she was an employee of either respondent; her claim for an unlawful deduction in respect of a bonus did not depend on being employed, but on the wider definition of her being a “worker”.

	That application was considered by the Chairman who, by a decision with extended reasons dated 26th May 1998 [“the second decision”], dismissed the application for review of the finding that the appellant was not an employee of either respondent, but allowed the application in respect of the bonus claim.

	That review hearing took place before the Chairman on 3rd July 1998. The appellant made written representations and Woolwich, against whom the bonus claim was made appeared through Counsel. By a decision with extended reasons dated 8th July 1998 [“the third decision”] the Chairman allowed the review, revoked that part of the first decision where he found that the appellant was not entitled to claim the bonus, held a full merits hearing on review, concluded that she was a “worker” and therefore entitled to bring the claim for unlawful deduction from wages, but held on the facts that she was not entitled to a bonus since, under the relevant bonus scheme, she was undergoing training for the week in respect of which the bonus was claimed and was thereby disentitled from a bonus payment under the terms of the Scheme.

	By a notice lodged on 5th June 1998 the appellant appealed against the first decision. This is a preliminary hearing held to determine whether the appeal raises any arguable point or points of law to go forward to a full appeal hearing. The appellant remains in Australia and we have considered the matter on the papers, including her amended Skeleton Argument and attachments faxed under cover of a letter dated 14th October.

	Her grounds of appeal fall under four heads:

(1)	that the tribunal erred in law in finding that she was not an employee of B&C;
(2)	that the tribunal erred in finding that she was not employed for a fixed term, given that the tribunal had given notice that the hearing on 6th April was to be a preliminary hearing confined to the question as to whether or not she was an employee;
(3)	that the tribunal erred in finding that she was not an employee of Woolwich;
(4)	that the tribunal erred in proceeding with the hearing on 6th April in her absence.

	As to the finding that she was not an employee we have considered the Chairman’s reasons set out in the first decision. The services of the appellant and Ms Steele were provided by B&C, a recruitment agency, to Woolwich. The appellant worked for Woolwich from 15th September until 30th October 1997. Having considered the documents the Chairman concluded that the appellant and Ms Steele were engaged under a contract for services by B&C, and that there was no contractual relationship between either lady and Woolwich. In reaching that conclusion he considered the relevant authorities. We can see no grounds for interfering with that finding.

	Having found, permissibly, that she was not engaged by Woolwich under a contract of service, the finding that there was no fixed term agreement between the appellant and Woolwich was otiose. She could only bring a claim for breach of a fixed term contract if she were an employee under the provisions of the Industrial Tribunal (Extension of Jurisdiction) Order 1994.

	Finally, the complaint that the matter proceeded in her absence on 6th April. It is a matter for the Chairman’s discretion whether the matter proceeded in her absence, she being abroad at the time. No formal application for an adjournment was received by fax or letter before the date fixed for the hearing. He considered the appellant’s detailed case set out in her Originating Application. We cannot say that it was a wrong exercise of discretion in law to proceed with the matter, bearing in mind the cost to the other three parties if the matter was adjourned on that day.

	In these circumstances we see no grounds for allowing this matter to proceed to a full hearing. Accordingly, the appeal must be dismissed.