Appeal No.EAT/1268/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 March 2002

Before
HIS HONOUR JUDGE PETER CLARK
MR P DAWSON OBE
MR D J HODGKINS CB

MR R J BARNETT	APPELLANT

H M PRISON SERVICES AGENCY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS J McNEILL
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

JUDGE PETER CLARK:
1.	On 9 November 1998, the Appellant, Mr Barnett, was sent a written offer of employment as a prison officer at H M Prison, The Mount, by the Respondent, H M Prison Services Agency.  He accepted that offer by signing and returning a copy of the letter.  The third paragraph of that letter stated:

“You should be aware that when accepting a Prison Officer post at The Mount, you will be expected to complete five years service before any requests for transfer will be considered, unless you are promoted or there are other exceptional circumstances which the Governor considers merit an early transfer.”

2.	Thereafter, Mr Bartlett took up his post at The Mount.  In due course, he received a document headed, Summary of the Principal Terms and Conditions of Appointment, which make no mention of the expected retention period at that particular prison.  On 15 June 2001 he presented an Originating Application to the Watford Employment Tribunal complaining that the Respondent had failed to comply with its statutory obligation to provide him with a written statement of particulars of his employment and breach of contract. 

3.	Since he remained in the employment at the time he presented his Originating Application, the Tribunal had no jurisdiction to entertain his complaint of breach of contract.  Employment Tribunals (Extension of Jurisdiction) Order 1994, Article 7.  As to the Particulars complaint, brought under section 11 Employment Rights Act 1996, the nature of the Appellant’s case is that at the time of his recruitment he was not made aware of a document entitled Prison Service Order (PSO) 8100 – Recruitment.  That document provides that a new recruit to the Service should receive a Recruitment Information Sheet, which informs the recruit, among other things, of any requirement for a minimum period of time in post.  He says that he did not receive a Recruitment Information Sheet; although he accepts that he was informed of the Mount’s minimum service requirement in his letter of appointment in the passage to which we have referred.

4.	The claim is resisted and came on for a Pre-Hearing Review under rule 7 of the 2001 Employment Tribunal Rules before a Chairman, Mr Adamson sitting alone at Watford.  The broad issue with which the chairman was concerned and with which we are directly concerned in this appeal, was whether the complaint had a reasonable prospect of success.  The Chairman found that it did not by an Order and with what are described as extended reasons (although only summary reasons are required.  Rule 7(6)) dated 10 October 2001 he directed the Appellant to pay a deposit of £200 as a condition of his continuing the proceedings.  

5.	More specifically, the Appellant contended that PSO 8100 was a collective agreement directly affecting the Terms and Conditions of his employment, particulars of which he ought to have been given within the meaning of section 1(4)(j) of the Employment Rights Act.  The Chairman held, applying the definition of Collective Agreement to be found in section 178(1) of the Trade Union and Labour Relations Consolidation Act 1992, as applied to section 1 of the 1996 Act by section 235(1) of that Act, that PSO 8100 “does not on its face appear to be a collective agreement as defined.”  Against that order Mr Barnett now appeals.  

6.	It is important to note that this is not an appeal against a substantive tribunal finding or decision but against the Chairman’s order made at a Pre-Hearing Review, where no evidence is called and the only question is whether, on the basis of the written cases and oral and/or written representations of the parties, the claim has a reasonable prospect of success.  Appeals against such orders will rarely succeed, as the EAT pointed out in Mackie v. John Holt Vintners Ltd [1982] ICR 146, a case decided on the former Pre-Hearing Assessment procedure, where the same test applied.

7.	In his skeleton argument, prepared for this preliminary hearing, Mr Barnett submitted that the Chairman’s use of the expression “on its face” lacks the precision necessary for a decision on the question whether PSO 8100 is or is not a collective agreement within the meaning of section 1(4)(j) of the 1996 Act.  That it seems to us misses the point of the Pre-Hearing Review Procedure.  It is not designed to lead to a final determination of the issues in the case; that is for the final, substantive hearing.  At this stage the Chairman is merely required to form an opinion, on the limited material provided for in rule 7(1), as to whether the claim has a reasonable prospect of success.  

8.	In these circumstances, it seems to us that the Chairman’s qualified expression of opinion was entirely appropriate in the context of these particular proceedings.  However, that point is not pursued by Ms McNeill, who appears on behalf of the Appellant under the ELAAS pro-bono scheme today.  Her submission is that on the material before him the Chairman reached a perverse conclusion in finding that the claim enjoyed no reasonable prospect of success.  In these circumstances she has directed our attention first to the document itself, PSO 8100 and paragraph 2.7.2 of that document, which provides:

“That candidates must be provided with a recruitment information sheet covering a number of matters and in particular this, if appropriate any requirement for a minimum period of time in post.  See paragraph 3.3.6.”

As to the status of that document, she has taken us to a document signed by Brodie Clark, Acting Director of Personnel, which at paragraph 20 says this:

“The Prison Service Trade Union Side, Prison Governors’ Association, Prison Officers’ Association and Prison Service Joint Industrial Council have been consulted over the contents of the Recruitment Order and this Instruction.”

9.	On that material, submits Ms McNeill, no Chairman properly directing himself as to the law, and in particular the definition of collective agreements and collective bargaining in section 178(1) of the 1992 Act, could conclude that this claim has no reasonable prospect of success.  She also submits that the Chairman, in reaching his opinion at the PHR stage, ought to take into account the fact that he does not have all the material in the case before him.  We reject that latter submission; the exercise at the PHR stage is that precisely limited by the provisions of rule 7(1) of the 2001 rules, and that is the only basis on which the Chairman can reach his conclusion.  

10.	As to the substantive point taken in the appeal, it seems to us that it was open to the Chairman to conclude that references to consultation with the relevant employees’ side organisations, is not the same as a collective agreement, that is an agreement or arrangement made between the Trade Union side and the employer, consultation not necessarily resulting in agreement.  On that view of the matter, the claim would fail.  The fact that a contrary view is arguable, does not of itself mean necessarily that a claim has a reasonable prospect of success.  That was the view that the Chairman took in this case.  In our view it was one that he was entitled to take and consequently we shall dismiss this appeal.