Appeal No. EAT/1101/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 April 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
LORD GLADWIN OF CLEE CBE JP
MRS D M PALMER

MS L EKMAN	APPELLANT

THE BRITISH PLASTICS FEDERATION	RESPONDENTS

Transcript of Proceedings

JUDGMENT
PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MS L EKMAN
In Person	

MR JUSTICE LINDSAY

1	We have before us by way of preliminary appeal the appeal of Ms Lena Ekman in the matter Ekman –v- The British Plastics Federation.  On 30 March 1999 Ms Ekman lodged an IT1 claiming only breach of contract and she named as the employer, British Plastics Federation, although the job that she had was as Administration Manager for Valuplast Ltd.

2	In the box 11 of her IT1 she expanded her complaint and said that by virtue of a contract of employment she was employed by the British Plastics Federation as Administration Manager for Valuplast, from 1 February 1998 at a salary of £24,000 per annum.  

3	She claims that she had not been given the 3 months notice to which she was contractually entitled.  She said in her paragraph 8 of that expanded box 11:-

“I entered into a contract with The British Plastics Federation and claim 3 months salary in lieu of notice.”

4	On 21 April 1999 the British Plastics Federation (which I will call BPF) put in its IT3 and it accepted that Ms Ekman had been dismissed.  In their IT3 they said 

“Ms Ekman was employed from 1 February 1998 under a contract between the British Plastics Federation ‘(BPF)’ and herself [the contract which the BPF was thus asserting was a contract between her and themselves] and with a title of ‘Administration Executive for Valuplast Ltd………..

………During her employment Ms Ekman did at all times work solely for Valuplast.

………At no point up to and including Miss Ekman’s fax of 12 October to Martin Dennison, the Chairman of Valuplast, did she question the authority of Valuplast either to give her notice to terminate her employment or to deal with her correspondence on the matter.  

Finally they said 

“Accordingly, Ms Ekman was given more than 3 months notice and, as she has been paid in full up to 31 December 1998, no further sums are due.”

5	That was how the matter stood; it is notable that the BPF was itself asserting a contract between BPF and Ms Ekman.

6	On 2 July 1999 the was a hearing before the Chairman alone, Mrs J R Hill, and the result was 

“the unanimous decision of the Tribunal is that the Respondents did not breach the Applicant’s Contract of Employment.”

7	In the course of argument before the Tribunal BPF, which was the only Respondent before the Tribunal, claimed not to have been the employer. The Tribunal says in paragraph 2

“The Respondent claimed that the British Plastics Federation were not her employer despite references to them in her Contract of Employment, she was in fact employed by Valuplast Ltd who had given her appropriate notice.”

In the Extended Reasons there were several references to the form of the contract and the Tribunal continues at paragraph 5 on page 8

“The Applicant claimed that when she was appointed by Mr Smith she was told she would need to be employed by BPF rather than Valuplast.  The Respondent’s evidence was that Valuplast is a very small organisation and they use the BPF facilities for payroll, contracts and general administration paying a fee to BPF for dealing with these matters.  For this reason the contract is a standard form and the wage slips and tax document shows BPF as the employer.”

8	It is notable is that there is no clear finding on the subject of whether the Tribunal accepted the Applicant’s claim that when she was appointed by Mr Smith she was told she would need to be employed by BPF rather than by Valuplast.  In paragraph 9 the Tribunal says 

“The issue before the Tribunal was whether the Respondent was in fact the Applicant’s employer.”

That obviously was an important matter for the Tribunal to deal with.  

In paragraph 10 they say

“The contract of employment was described by the Respondent as being muddled.  The Applicant agreed that she would describe herself as working for Valuplast.”

Ms Ekman has since sworn an affidavit and in relation to that question she says this- paragraph 28 of her affidavit, our page 15-:-

“The Chairman asked me “who would you say you worked for if your friends asked?”  I said “I worked for Valuplast.”  My friends knew I was employed by the British Plastics Federation.  The Chairman referred to my reply in her summing up.  Had she said the tax office, someone dealing with National Insurance or my bank – indicating that the question related to who my employer was, I would have replied the BPF.  Had she said a stranger, I would probably have said that I worked for Valuplast but I was employed by the British Plastics Federation.”

 9	It can in some cases be a fair distinction, if, for example, an employer is seconded, to distinguish between who the employer is and who the employer works for.  It may be that the Chairman’s reference there overlooked the distinction that Miss Ekman had in mind, whether or not it was made clear at the time.  

10	In the Extended Reasons there comes a sentence, which, speaking for myself, I find difficult to grasp.  The Chairman says that on a close reading of the contract there are so many variations made to indicate that it is with Valuplast Ltd not with the British Plastics Federation 

“…that the Applicant cannot have been mislead into believing that she was signing a contract with Valuplast.”

11	The sentence might have made sense if the last words had been “with BPF” but it does say with “Valuplast”.  There does seem to be some element of confusion there.  More importantly, we have in front of us the copy contract.  It is worth remembering that even the IT3 had asserted that there was a contract between Ms Ekman and the BPF. As for the contract itself, it begins as follows.  It is headed:-

“CONFIDENTIAL
BPF CONTRACT”

That is typescript, then, written along side, one does not know when, one sees in handwriting:-

For VALUPLAST LTD

Then under the heading 

TERMS AND CONDITIONS OF SERVICE

One finds:-
“In this statement under the Contract of Employment Act 1972, as amended the British Plastics Federation gives you, L. Ekman particulars of the terms and conditions on which it is employing you with effect from 1/2/98 the employment having begun on 1/2/98.”

12	That apparently suggests a contract between Miss Ekman and the BPF.  There are a number of provisions which refer to the BPF, for example the holiday provisions relate to the Federation’s holiday year and both the Federation and, the BPF’s Director General are ascribed particular roles.  Termination in sub clause 5f is by reference to leaving the Federation’s employment.  Sick pay is or can be affected by investigation by the Federation.  The Pension scheme is described as a Federation scheme and grievances can go up to the Director General of the Federation.  Confidentiality is a provision which also introduces references to the Federation and it is the Federation that is permitted to change the terms and conditions in clause 13.  The final provision reads as follows: -

“I acknowledge receipt of the original of this Contract and have signed a copy and returned it to the Personnel Department; the above terms and conditions of employment are freely accepted by me, and I acknowledge that this Contract with the British Plastics Federation began on 1/2/98 and that these terms form the basis of my Contract of Employment.”

13	It is signed by Miss Ekman, it is signed for Valuplast and it is also signed by the BPF Federation Secretary.

14	In these circumstances we regard it as arguable (and, of course, at this stage we will say nothing more than that; that is all that is necessary for us to determine) that the Chairman’s decision that the employer was Valuplast is an error of law.  If the employer was not Valuplast but the notice was given by Valuplast, then, obviously, further questions will arise and the Chairman did continue with further questions.

Thus in paragraph 11 she says: -

“Even if I were wrong in my interpretation of the Contract of Employment the relationship between Mr Smith and the Applicant was that of line manager and member of staff for whom the line manager had the authority to hire and fire.  It was Mr Smith who engaged the Applicant; it was clearly Mr Smith who then had the ostensible authority even if he did not have the actual authority to dismiss the Applicant and this he sought to do from the 17 July 1998 onwards.”

15	But the letters that we have show Mr Smith giving notice, not on behalf of the BPF, which arguably was the employer, but on behalf only, as it would seem, of Valuplast.  If Valuplast was not the employer, could the notices by Valuplast be of any effect at all?  It seems to us there is again, arguably, an error of law.

Finally the Chairman says this in paragraph 12: -

“….Her contract required that she received 3 months notice of termination.  The initial letter of the 17 July 1998 gave the Applicant a termination date; this termination date was gradually put back and back from the 9 October to the 31 October and ultimately to the 31 December.  This was a progressive action but the notice of her termination of employment was originally given on the 17 July 1998.  Consequently the Applicant received almost six months notice of termination not just three months.”

16	However, on 4 September 1998 a letter was written on Valuplast paper signed by Brian Smith who was the Chief Executive of Valuplast, saying: -

“Dear Lena,
With reference to the letter you received on 21 July 1998, I am pleased to inform you that Valuplast’s financial situation allows me to move the date for termination of your contract forward to 31 October 1998.  I therefore withdraw the notice given in my previous letter.”

17	Miss Ekman’s employment finally ended on 31 December 1998 and one needs to consider what is the effect of the first notice being withdrawn and of that other notice given on 4 September in the manner that we have indicated moving termination forward to 31 October 1998.  Of course, there is a gap between 4 September 1998 and 31 October 1998 of less than 3 months.  There is a later letter of 12 October 1998 that specifies that the employment will continue to 31 December 1998, but again the gap is not 3 months.  What needs to be considered here is what is the effect of having said that the first notice was withdrawn.  There might be arguably be a point of law there, a third point to be considered.

18	Quite the most important point here, however, is who was the employer.  We direct a full inter partes hearing.  

19	We have considered the affidavit that Miss Ekman has put in and the Chairman’s response to that affidavit.  Miss Ekman at the moment has a Notice of Appeal of 5 September 1999 which has a paragraph 7 that is divided into allegations of (a) procedural irregularities of the hearing, (b) bias and proper conduct and (c) that the decision was contrary to the evidence.  We do not see those paragraphs to be proper to go to a full hearing.  What we direct is that the Notice of Appeal should be amended by striking out the existing paragraph 7, but we give leave to Miss Ekman to amend her Notice of Appeal to add all or any of the 3 points of law that we have already described as arguably available on her behalf.  The time within which the amendment is to be made is within 21 days after she has been sent a transcript about this judgment.  It will, of course, greatly assist her in her task if she is able to achieve professional assistance in the drafting of the Notice of Appeal and, of course, in argument at the full hearing.

20	So far as concerns Chairman’s Notes, Miss Ekman does ask for them in her Appellant’s Notice but when she asked for them she would have had in mind a loose and wide-ranging appeal of the kind touched on in her long paragraph 7.  However, the topic set out on paragraph 7 will not now be advanced.  Accordingly we do not make an order for Chairman’s Notes here and now but adjourn the subject of Chairman’ Notes until after the Notice of Appeal has been amended so that it can be seen precisely how the case is then being argued. That also gives the Respondent the chance of having their views considered on the subject.  So we adjourn the question of Chairman’s Notes with liberty to either side to restore it.  If necessary there can be an oral directions hearing marked for the President alone but the parties may think it more economical to deal with the matter by letter, again marked for the President, so as to avoid the cost, delays of an oral hearing.

22	Accordingly we direct a full inter partes hearing and we give the ancillary directions as to amendment of the Notice of Appeal, as to striking out parts of the Notice of Appeal and as to Chairman’s Notes that we have indicated.