Appeal Nos.	 EAT/13/99 	                   & EAT/101/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 April 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR J C SHRIGLEY
MS B SWITZER

EAT/13/99 

ELTEK (UK) LTD 	APPELLANTS

EAT/101/99 

ELECTROTECH PERSONNEL SERVICES LTD	APPELLANTS

MS J A THOMSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

EAT/13/99

For Eltek (UK) Ltd	

MR S JONES
(of Counsel)
Messrs Edward Lewis
Solicitors
Verulam Gardens
70 Gray's Inn Road
London 
WC1X 8NF	
EAT/101/99

For Electrotech Personnel Services Ltd	

NEITHER PRESENT NOR REPRESENTED	

	JUDGE PETER CLARK:	By an Originating Application presented to the London (North) Employment Tribunal on 23rd June 1998, the applicant, Ms Thomson, described her complaint in Box 1 as:

“Dismissal as a result of pregnancy (Section 99, 1996)”

	We take that to be a reference to an employee’s statutory right not to be unfairly dismissed by reason of pregnancy or any other reason connected with pregnancy contained in s.99 of the Employment Rights Act 1996.

	She named as respondents to her complaint (1) Electrotech Personnel Services Ltd [“EPS”] and (2) Eltek (UK) Ltd [“Eltek”].

	Her particulars of complaint contained in Box 11 of the Originating Application read as follows:

“I was employed by an agency (EPS) to work at Eltek. The latter company dismissed me on grounds of absences due to sickness. Those absences (as I had told the Company at the time) were the result of my pregnancy. 
I enclose a copy of a letter from my doctor to explain the situation. 
My principal intent in seeking the Tribunal’s assistance is to make sure that my employer pays my statutory maternity pay.”

She gave as her period of service June 1997 to 15th May 1998.

	By their Notices of Appearance:

(1)	EPS contended that the applicant was not their employee, but was engaged by them under a contract for services; that she was working for Eltek, and that Eltek wished to terminate the agreement made between EPS and Eltek for the supply of the applicant’s services on the grounds of her frequent absences from work. Further, they denied that the applicant was unfairly or wrongfully dismissed or subjected to sex discrimination.

(2)	Eltek referred to a contract for services made between EPS and Eltek whereby EPS provided agency workers for Eltek’s business as and when required. Pursuant to that contract EPS supplied the applicant to Eltek as an agency worker to carry out work as an assembly operator. She was not employed by Eltek. Further, Eltek decided to dispense with the applicant’s services on grounds of her frequent absences. They were unaware that the applicant was pregnant, or suffered from pregnancy related illness.

	A Chairman directed a preliminary hearing should take place to determine whether the applicant was an employee within the meaning of s.230(1) of the Employment Rights Act 1996. That issue came on for hearing before a full Employment Tribunal, chaired by Mrs T J Mason, on 12th October 1998.

	We see from that tribunal’s decision with extended reasons promulgated on 11th November 1998, the decision having been reserved, that all three parties attended and were represented. The issue was identified at paragraph 3 of the reasons thus:

“The issue is whether Ms Thomson was an employee of the Agency or of the Client as defined by section 230 of the Employment Rights Act 1996 and/or by section 82 of the Sex Discrimination Act 1975.”

	The tribunal decided that the applicant was not an employee of either respondent, within the restricted meaning of s.230(1) of the 1996 Act, but that she was employed by EPS under the broader terms of s.82(1) of the 1975 Act, which includes employment under any contract personally to execute any work or labour. That plainly encompassed the written contract for services entered into between the applicant and EPS and set out at paragraph 6 of the reasons.

	We note from the summary of the submission made on behalf of the parties that on behalf of EPS it was accepted that if the tribunal found that the contract made with the applicant fell within s.82 of the 1975 Act the matter would have to go to a merits hearing.

	It is equally clear that at no time was an issue raised with Eltek that the applicant was a contract worker and entitled to the protection of the 1975 Act by virtue of s.9 of that Act.

	However, in their reserved decision the tribunal found that the applicant was a contract worker within the meaning of s.9 and that the case against Eltek would proceed to a full merits hearing on that basis.

	Against that decision both Eltek and EPS have appealed to the Employment Appeal Tribunal. The first appeal in time is that of Eltek by a Notice dated 18th December 1998 and signed by Mr Sean Jones of Counsel, who did not appear below. EPS then lodged a Notice of Appeal dated 23rd December 1998 setting out identical grounds of appeal and signed, not by Mr Jones, but by Pickworths, the solicitors acting for EPS.

	At this preliminary hearing Mr Jones appears on behalf of Eltek. Pickworths have written to this tribunal indicating that they do not wish to appear at the hearing, but rely on the arguments advanced on behalf of Eltek.

	Mr Jones submits that in her Originating Application the applicant advanced no claims under the 1975 Act, although it was open to her to do so.

	The preliminary issue, identified in the Chairman’s letter of 31st July 1998, was limited to the question whether the applicant was an employee, that is, was employed under a contract of service by either respondent.

	At the hearing held on 12th October 1998 the Regional Chairman broadened the issue to encompass a possible claim under s.6 of the 1975 Act, based on the wider definition of employee contained in s.82 of that Act.

	The tribunal determined both questions, under s.230(1) of the 1996 Act and s.82(1) of the 1975 Act in favour of Eltek. The applicant was not employed by that company by either definition.

	Accordingly, the claim ought to have been dismissed against Eltek, but instead the tribunal, by its reserved decision, allowed the claim against Eltek to proceed to a full merits hearing on the basis that she was protected under s.9 of the 1975 Act, as a contract worker, against acts of sex discrimination there set out.

	It was submitted that the tribunal fell into error by allowing the matter to proceed against Eltek on a basis which was neither pleaded against the company then or now, in further and better particulars of the Originating Application served since the tribunal hearing. Effectively, the tribunal has added a claim, of its own motion, which is out of time, without it being raised by the applicant, without giving Eltek an opportunity to make submissions on such proposed amendment, and without giving reasons for its finding that the applicant was a contract worker who had a potential claim under s.9.

	It seems to us, at this preliminary hearing stage, that two particular points arise in this appeal. 

	The first is whether by deciding the s.9 point without hearing submissions from Eltek and without there having been any application to amend to add such a claim formally, the tribunal were in breach of natural justice so that the decision in relation to the s.9 point ought to be set aside. 

	Secondly, although Mr Jones fairly accepts that the applicant does, on the facts, fall within the s.9 category of a contract worker, he wishes to take the point under the rule in Henderson v Henderson, recently considered by the Court of Appeal in Divine-Bortey v London Borough of Brent [1998] IRLR 525, that the questions of the relationship between the applicant and Eltek having been fully canvassed before the tribunal on 12th October 1998, and the applicant having failed to make good the relationship under either s.230 of the 1996 Act or s.82 of the 1975 Act, it is not now open for her, if she chose to do so, to seek to amend her claim to add a s.9 claim. 

	We have considered whether in fact any injustice has been caused to Eltek by this arguable breach of nature justice. It may be, at the end of the day, that at the full hearing this tribunal will consider that no injustice has been caused. But we are not satisfied at this preliminary hearing stage that that outcome is inevitable. In these circumstances, the test being whether the appeal raises any arguable point of law, we shall allow the matter through in so far as the appeal of Eltek is concerned.

	A further point has been raised by Mr Jones which concerns us, namely, that this case has been reserved to the same Chairman. If he succeeds in establishing a breach of natural justice at the full appeal hearing, even if the outcome is that the matter proceeds to a full hearing before the Employment Tribunal, this Appeal Tribunal will wish to consider whether or not the earlier breach of natural justice requires that the case should be heard by a different Employment Tribunal.

	That deals with the case of Eltek.

	So far as EPS are concerned, although they have sought to rely on the arguments raised by Mr Jones in his Notice of Appeal drafted on behalf of Eltek, in fact their position is quite different.

	As we indicated earlier, it was accepted, on behalf of EPS, that if the tribunal found that the relationship between the applicant and EPS fell within the definition of an employee under s.82 of the 1975 Act, then the sex discrimination claim should proceed as between the applicant and EPS. The tribunal did so find. They were plainly entitled to reach that conclusion. In these circumstances, we can see no arguable point of law raised by EPS and accordingly, the appeal against the decision in their case will be dismissed.

	For the purpose of the full appeal hearing in the Eltek case the appeal will be listed for ½ a day. Category B. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged at the same time with this tribunal. Mr Jones initially wished to apply for Chairman’s Notes of Evidence, but that application has now been withdrawn. We think correctly. We cannot see that Chairman’s Notes of Evidence are necessary for the purpose of the appeal. There are no further direcitons.