Appeal No. EAT/1060/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 March 2001

Before
HIS HONOUR JUDGE PETER CLARK
LORD GLADWIN OF CLEE CBE JP
MR T C THOMAS CBE

MRS A RHODEN-BURKE	APPELLANT

1) LONDON BOROUGH OF LAMBETH 	 FIRST RESPONDENT
2) CAPITA BUSINESS SERVICES	SECOND RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING
Revised

	APPEARANCES

For the Appellant	MS K MONAGHAN
(of Counsel)
Messrs Deighton Guedella Solicitors
Top Floor
30/31 Islington Green
London N1 8DZ	
For the 1st Respondent

For the 2nd Respondent	MR D J O'DEMPSEY
(of Counsel)
Borough Solicitor's Office
London Borough of Lambeth
Lambeth Town Hall
Brixton Hill
London SW2 1RW

MS A GILES
(Representative)

HIS HONOUR JUDGE PETER CLARK:

1.	This case is proceeding in the London South Employment Tribunal.  The Applicant, Mrs Rhoden-Burke, commenced employment with the first Respondent, London Borough of Lambeth in September 1985 as a Local Income Officer – Enforcement Team.  On 23 October 1994, she left the employment having commenced maternity leave on 11 September 1994 and having first notified Lambeth that she wished to take advantage of their five year maternity leave option scheme with a view to returning to work in September 1999.  Under that scheme, a woman employee of Lambeth was contractually entitled to return to a similar post to that in which she was employed immediately before the commencement of her maternity leave or an alternative post as provided for under the scheme at any time up to five years after the date on which she ceased to be an employee, on condition that: (1) she did not take paid work during the period between termination and her return to work and; (2) she gave three months notice in writing of her intention to return.

2.	On 1 December 1997, the part of Lambeth’s undertaking in which the Applicant had been employed was transferred to the second Respondent, Capita Business Services.  On 26 April 2000, the Applicant presented an Originating Application to the Employment Tribunal.  In it she contends that, unaware of the transfer to Capita, she and her Trade Union notified Lambeth of her intention to return to work, first in June 1998 and then again in June 1999.  We see from her protective claim form in subsequent County Court proceedings, presently stayed, naming these Respondents as Defendants dated 1 August 200, that she alleges that she wrote to Lambeth on 22 June 1999 giving three months notice of intention to return to work in September 1999.  She further alleges in those proceedings that she has not taken up other employment since October 1994.  It is claimed in these Tribunal proceedings that neither Lambeth nor Capita have complied with the employer’s contractual obligation to permit her to return to work in accordance with the five-year scheme.  In these circumstances she claims: (1) that she has been unfairly dismissed for a reason connected with her pregnancy contrary to Section 99 of the Employment Rights Act 1996; (2) breach of her statutory right to return to work; (3) unlawful sex discrimination; (4) breach of contract.

3.	By their Notice of Appearance Lambeth: (a) deny that she has given notice of intention to return in accordance with the Scheme;  (b) do not admit that she has not taken other employment doing the relevant period; (c) deny all claims made against them; (d) contend that the claims and each of them are time-barred and further contend that the claim of unfair dismissal must fail on jurisdictional grounds.  She was not dismissed, they contend, but resigned in October 1994.  Capita deny that the Applicant was employed in the part of Lambeth’s undertaking transferred to them in December 1997, immediately before the transfer.  Consequently, they deny that she was ever employed by them and as a result the Tribunal has no jurisdiction to hear the complaints brought against them by the Applicant.

4.	On 1 June 2000, the Applicant’s solicitors applied to the Tribunal for leave to serve a Sex Discrimination Act questionnaire 17 days out of time, enclosing a copy of the proposed questionnaire.  On 9 June 2000 a Chairman, Mr Snelson, granted permission to the Applicant to serve the questionnaire out of time, apparently without reference to the Respondents.  On 23 June Lambeth wrote to the Tribunal inviting the Chairman to reconsider his order granting the Applicant permission to serve the questionnaire out of time.  By a letter dated 29 June, that Chairman permitted Lambeth to renew their opposition to permission to serve the questionnaire out of time at an interlocutory hearing then fixed for 12 July 2000.  On the 12 July the parties came before a Chairman, Ms C E Taylor on the directions hearing.  Following that hearing Ms Taylor promulgated an order, with reasons, on 1 August 2000.  By that order she gave the following directions:

a)	A preliminary hearing was to be held to determine the following issues:
	
1)	Whether in or about 1994 it was agreed that the Applicant could return to work in September 1999 under Lambeth’s five-year option scheme.

2)	Whether the Applicant complied with the requirements to give notice of her intention to return to work as required by that scheme.

3)	Whether the Applicant had a contractual right to return to work and if she did on what date that right took effect.

4)	Whether Lambeth or Capita is contractually liable for a breach of the Applicant’s contractual rights.

5)	Whether the Applicant is a person who has a right to present a complaint of sex discrimination against Lambeth or Capita under Sections 1 & 6 of the Sex Discrimination Act 1975.  

b)	The question as to whether permission should be granted to the Applicant to serve her questionnaire out of time was put over.  The order at paragraph 6 indicates that that question will be permitted at the end of the full merits hearing.  It is common ground before us that that must be a slip.  Paragraph 5 of the Chairman’s reasons makes it clear that a ruling on that question is to be made at the end of the preliminary issue hearing.

c)	That the Applicant provide her consent in writing to Lambeth to approach her Tax Office to see whether she had taken employment since October 1994, coupled with a direction that she provide the necessary information for that purpose.  That direction was subsequently put into the form of an order dated 8 August, to be complied with on or before 15 August 2000.  

5.	Against those various directions and orders the Applicant now appeals.  Ms Monaghan, on her behalf take 3 points.  We can deal shortly with one point, that the Chairman had no jurisdiction to order the Applicant to provide her written consent to Lambeth contacting the Inland Revenue to establish whether or not she was in employment between October 1994 – October 1999.  Mr O’Dempsey accepts that the Chairman did not have jurisdiction to make that order.  This order is not made against Capita.  Having been taken to rule 4 of the Employment Tribunal Rules of Procedure, we accept that that concession is properly made.  Accordingly, we shall allow the appeal on that ground. 

6.	The principal issue before us is whether the Chairman erred in law in ordering the issues which she identified to be heard at a preliminary hearing under Rule 6.  In determining that issue we have in mind the observations made both in this Appeal Tribunal and the Court of Appeal on the suitability of issues to be determined at a preliminary hearing.  It is necessary to ask whether there is a “Knock out point” which is capable of being decided after a relatively short hearing.”  O’Shea Construction Limited v Bassi [1998] ICR 1130, page 1140; whether the outcome may be an unnecessary duplication of evidence and prolongation of hearings; and  whether it is desirable to seek to isolate issues which are better decided in the context of the whole dispute.

7.	Mr O’Dempsey supports the Chairman’s direction on the basis that the case, as it  must have appeared to her at the hearing held on 12 July 200, turned simply on the question as to whether the Applicant had a contractual right to return to work in September 1999; if not, all her claims fail.  It is, he submits, a potential knock out blow suitable for preliminary hearing.  Having heard the way in which the issues have been outlined by MS Monaghan, we are not persuaded that this is the case.  On the contrary, we are driven to conclude that no reasonable Chairman, properly directing herself, could conclude that this is a proper case for a preliminary hearing.

8.	Applying the helpful guidance given by Mummery J, as he then was, in National Union of Teachers v St Mary’s School [1995] ICR 317, we have formed the view that we can and should interfere and further allow the appeal on this principal ground.  In so doing we have not overlooked the position of Capita.  Ms Giles submits that in fairness to that Respondent, the question as to which, if either of the Respondents was the proper employer ought to be determined as a preliminary issue with a view to saving Capita the added expenses of a full hearing.  We think that that superficially attractive short cut disregards the overall factual matrix, which will best be determined at a full Merits hearing, when all questions can and should be resolved between the parties.

9.	In these circumstances, we shall allow the appeal and order that the matter be returned to a different Chairman for a directions haring with a view to managing the case for a full merits hearing before a full Employment Tribunal, there being a claim of sex discrimination included within the Applicant’s claims.  

10.	Those directions will include an exhaustive list of the issues between the parties (such a list to be agreed if possible before the directions hearing); any matters of amendment, discovery and further particulars and, the question as to whether permission is to be granted for service of the Section 74 Questionnaire out of time.  That latter indication, we think, disposes of Ms Monaghan’s third point in this appeal relating to the Chairman’s order in respect of the questionnaire.