Appeal No.	 EAT/13/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 October 1999

Before
THE HONOURABLE LORD JOHNSTON
MR L D COWAN
MR D J JENKINS MBE

ELTEK (UK) LTD	APPELLANTS

MS J A THOMSON & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR S JONES
(of Counsel)
Messrs Edward Lewis
Solicitors
Verulam Gardens
70 Gray's Inn Road
London
WC1X 8NF	
For the Respondents	MR P STAFF
(Representative)
Dacorum District Citizens Advice Bureau
Dacre House
19 Hillfield Road
Hemel Hempstead
HP2 4AA	

	LORD JOHNSTON:		This is an appeal at the instance of one of two respondents against a decision of the Employment Tribunal on a preliminary matter relating to at the time it was presented, the status of the applicant as regards her work with the two parties, the Agency and the client as defined in the hearing at first instance.

1.	The preliminary hearing was ordered by the tribunal into the issue of the status of employment, contrary in fact, it appears, to the wishes of the Chairman when the proceedings started, who wished the whole matter to proceed to a full hearing, but all three parties were agreed and thus urged upon her that the preliminary issue only should be determined at this stage.

2.	The decision of the tribunal was that in relation to unfair dismissal the claim would be dismissed, but having determined upon evidence that the applicant was not an employee, in the sense that is understood in relation to s.6 and s. 82 of the Sex Discrimination Act 1975, nevertheless the Chairman introduced, in her judgment almost ex proprio motu, a right or claim under s.9 of the 1975 Act and allowed the matter to go forward upon that basis.

3.	The appeal is taken substantially upon the position, based on a number of propositions, that that was not a proper course for the tribunal to take. As far as the present appellant is concerned, the claim against them should have been dismissed.

4.	Mr Jones, who appeared for the appellant, essentially based his position on four separate, albeit related points.

5.	First of all he submitted that in terms of a decision of the Court of Appeal in Chapman v Simon [1994] IRLR 124, the jurisdiction of an Employment Tribunal to entertain issues before it was limited to those which were presented to it and if, at the end of the day, a decision was issued based on issues beyond that position, it had exceeded its jurisdiction and accordingly acted incompetently. This, Mr Jones submitted, was precisely what had happened in the present case, since at the outset the respondent had lodged a claim relating to her pregnancy and maternity pay based on the fact that she was an employee of the relevant employer and accordingly did not base any claim that she was a contract worker in terms of s.9 of the 1975 Act which was the basis upon which the Chairman of the tribunal had allowed the matter to go forward. This, it was submitted, amounted to an excess of jurisdiction such as was to be found in the proposition enunciated by the Court of Appeal in Chapman as follows at paragraph 33:

“… I have already set out the terms of Ms Simon’s originating application, which gives every indication of having been prepared with professional assistance, and they way in Mr Munasinghe framed his statement of the first incident. Sections 54 and 56 of the 1976 Act make it clear that the jurisdiction of the Industrial Tribunal is limited to complaints which have been made to it; no complaint was ever made by Ms Simon relating to the matters which the majority in paragraph 9 found to have constituted racial discrimination.”

6.	The facts of that case appear to be that certain specific allegations of race discrimination were made and were in fact rejected, but the tribunal proceeded to add one of its own in relation to the pre-judging of the complaints, upon which it founded a decision of racial discrimination. The decision of the Court of Appeal appears to be that by so doing the Industrial Tribunal exceeded its jurisdiction.

7.	We consider that there is considerable force in this point in the present case, but we have come to the conclusion that the introduction by the Chairman of the s.9 claim is merely a different formulation, albeit under a different section, of the basic claim that was brought initially relating to a single act, namely that of dismissal. It is not related therefore to a new factual element in the case and is merely a re-labelling, albeit by a different section of the same issue. That being so, we do not consider that the case of Chapman is binding upon us and is distinguishable. That being so, we consider that the question of jurisdiction was not exceeded in the rather peculiar circumstances of this case, and this point fails. It is highly significant that the appellant would not have complained if the original claim was based in the alternative as between ss. 6 and 9 of the Act.

8.	Mr Jones then went on to submit that in any event the introduction, albeit by the Chairman, of s.9 and a claim thereunder, admitted effectively a new issue which the respondent ought to be estopped from presenting by reason of the fact that the actual case had already been decided on the basis of the decisions taken by the Chairman with regard to the original application and this was a new issue. In this respect, he based his position on the case of Divine Bortey v London Borough of Brent [1998] IRLR 525. He said that that case was indistinguishable from the present case save that the introduction of the s.9 issue was still within the subsisting process as opposed to Divine Bortey when a new and fresh application was made on a separate issue.

9.	In this respect we consider that that distinction is crucial. What has happened here  is that the element of s.9 has been introduced in the currency of the present process, albeit after the hearing had been completed. That being so, we do not consider that we are bound by Divine Bortey and that accordingly the principle of estoppel or its equivalent does not apply in the present case as a matter of strict application.

10.	The third matter that was raised related to the issue of time-bar in as much that this, it was submitted, was a new matter, that is to say the s. 9 application, and that while it would have been timeous if it had been raised at the start of the proceedings, by the time it was being introduced it was raising new matters more than three months after the act complained of, namely dismissal.

11.	Again, in this respect we consider that while it is certainly true if looked at strictly that it was introduced for the first time well outside the three month period, no new factual elements were being introduced and we consider, again, that this is just a re-labelling of an existing factual position not sufficiently fundamental to warrant it being a new claim which would be required to be made within the three months period. That being so, this point also fails.

12.	The final and perhaps the most substantial point, which was the principal one upon which Judge Peter Clark allowed this case to come to a full hearing, applies to the issue of natural justice. It was submitted with considerable force that the introduction by the Chairman at the end of the hearing, giving the appellant no opportunity to deal with the matter, of the s.9 claim was contrary to natural justice and prejudiced his client’s position to a material extent. He had succeeded on the points he had submitted that he came into the tribunal to deal with and that should have been the end of the matter. The case should have been dismissed and no issue of s.9 should in all fairness be allowed to be introduced at the stage it was by the Chairman.

13.	Here again we can see that there is considerable force in this position having regard to the fact that obviously there is prejudice to a party who is forced to face up to a claim which he maintains he was not prepared to meet until it was introduced at a certain stage in the process. 

14.	However, what we have to do in our opinion in this type of situation is to balance the issues of prejudice between the two parties. Certainly if the appellants are now exposed to a sound claim, they have been prejudiced by the fact that they are thus exposed and have not been able to escape from the process by having successfully defended the points with which they maintained they had come into court to deal. On the other hand, if the claim is sound, the prejudice to the respondent of not being able to proceed with it far outweighs any prejudice to the appellants, who have not, strictly speaking, been ambushed against any evidential question, because this is still at a preliminary hearing in the process and they will have time to prepare to meet the claim if they have a defence to it. If they have not got a defence to it, then it seems to us that the interests of justice generally determine that the respondent should be allowed to proceed with the matter.

15.	That is the basis of our decision and the appeal therefore is dismissed. Having said that, we wish to emphasise strongly that we deprecate the way in which this matter has arisen. We consider that in many cases it would be contrary to natural justice to require a party to face up to a claim introduced for the first time by a tribunal, not having been focussed in the hearing that took place before it. The special circumstances of this case are firstly, that it is a preliminary hearing; secondly, it is in our view, really a re-labelling of the position originally presented by the respondent to the Employment Tribunal in the original IT1 and that thirdly, in all the circumstances, justice dictates that it should be allowed to proceed. We would not, however, like this to be regarded as any form of precedent. We consider that the unusual circumstances of this case to be precisely that and would hope that such does not happen again.

16.	Finally we should add an order that in view of the way this matter has arisen and in view of the quite natural reaction of the appellants to the position they find themselves in, any further hearings in this matter we direct should be heard by a tribunal chaired by a different Chairman.