Appeal No. EAT/846/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 8 June 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR D G DAVIES

	MR K M YOUNG CBE

MR H RAHMOUNI	APPELLANT

SOLOMON BADER & WHEELMORE LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R ROEBUCK
(OF COUNSEL)
Russell & Co
32 The Boulevard
Crawley
West Sussex RH10 1XP

For the Respondents	MR B BATTCOCK
(OF COUNSEL)
Paul Davidson Taylor
3 Castlefield Court
Church Street
Reigate
Surrey RH2 OAH

		MR JUSTICE MUMMERY: (PRESIDENT)	This is an appeal from a decision of the Industrial Tribunal on a preliminary point at a hearing held at Brighton on the 10 August 1993.  For reasons notified to the parties on the 8 September 1993, the Tribunal unanimously decided that there was no jurisdiction in the Tribunal to hear the complaint of unfair dismissal brought by Mr Rahmouni against two Respondents, a Mr Solomon Bader and a Company, of which he was a director, Wheelmore Ltd.

	The basis of the Tribunal's decision was that, when Mr Rahmouni was dismissed from his employment as a waiter on the 11 January 1993, he did not have the minimum period of continuous employment of two years to be entitled to complain of unfair dismissal under the Employment Protection (Consolidation) Act 1978.  The Tribunal reached its decision in difficult circumstances.  

	Mr Rahmouni was not legally represented.  He is of Algerian birth, though now a British subject.  The Tribunal noted that his grasp of English is not good.  The Tribunal was assisted by the attendance of a Mr Mahomed Benmassoud as an interpreter.  With that assistance the Tribunal heard evidence from Mr Rahmouni.  The case for the Respondents was conducted by Mr Bader, who also gave evidence.  

	The position before the Tribunal was, therefore, that neither side was legally represented. That is a fairly common occurrence in an Industrial Tribunal, as it is in this Tribunal.  The absence of legal representation is a handicap to any Tribunal which has to reach a decision on law or fact.  Fortunately, this Tribunal, has had the benefit of excellent legal representation.  Counsel appeared for each side, Mr Roebuck for Mr Rahmouni, and Mr Battcock for the Respondents.

	We mention the position on representation because it appears to us that the Tribunal deciding the preliminary point was faced with difficulties that this Tribunal has not had.  In order to understand the grounds of appeal, it is necessary to refer to the circumstances which gave rise to the proceedings.  Mr Rahmouni presented his application for unfair dismissal on the 6 April 1993.  A firm of Solicitors, Russell & Co., advised him at that time, under the Green Form Scheme.  They gave him help in completing the form IT1.  

	The form IT1 stated that Mr Rahmouni's complaint was that he had been unfairly dismissed on the 11 January 1993 by Mr Bader, his employer, as a waiter at the Rifleman Inn, Warninglid.  According to the IT1 the period of Mr Rahmouni's employment was from January 1990 until the date of his dismissal on the 11 January 1993.  He gave details in the IT1 of his remuneration and other benefits.  He set out the facts on which he relied in support of his contention that the dismissal was unfair.

	A Notice of Appearance signed by Mr Bader was sent to the Industrial Tribunal on the 6 May 1993.  The Appearance was completed in the name of Wheelmore Limited, trading as Solomon's The Rifleman Inn, Warninglid.  The intention was stated of resisting the application.  The dates given by Mr Rahmouni for his employment were contested.  The IT3 form simply stated this as the grounds of resistance:

		"Wheelmore Ltd, trading as Solomon's Restaurant, commenced trading 1 July 1992.  Mr Rahmouni was employed by the Company as a waiter effective 1 July 1992."

	It was, therefore, made clear that the ground of defence was that the Tribunal had no jurisdiction because Mr Rahmouni, at the date of his dismissal, did not have the minimum two years continuous employment required by the 1978 Act.  It was made clear in the IT3 that Mr Rahmouni's employment had only started with his employer on the 1 July 1992.  

	It appears from correspondence, produced during this hearing, that the Tribunal then gave notice that the Originating Application should be listed as a preliminary hearing on the 10 August.  The preliminary hearing was identified in the schedule to the Notice sent out to the parties in these words:

		"Whether the Applicant is disqualified from the right not to be unfairly dismissed by the provisions of Section 64(1) (a) of the Employment Protection (Consolidation) Act 1978 (as amended) regarding a minimum period of continuous employment (2 years)."

	According to the Full Reasons given by the Tribunal for their decision, adverse to Mr Rahmouni, matters at the Tribunal hearing took a different turn, as foreshadowed by the IT3 submitted by Mr Bader.  Having referred to the forms IT1 and IT3, and the difficulty that Mr Rahmouni had with his English, the Tribunal stated this in paragraph 4:

		"It was not disputed that Mr Rahmouni had worked at the restaurant from late 1989 or possibly early 1990.  For practical purposes Mr Bader was the proprietor of the restaurant although he was then running the business through a different company - Rifleman Inn Warninglid Limited.  At some time during the early part of 1992 Mr Rahmouni went to Germany for about three months and looked for work there.  After he came back, when the restaurant was being operated by Mr Bader through the Respondent Company (we heard that the previous Company had gone into liquidation).  Mr Rahmouni was again employed at the restaurant in the capacity of a waiter and continued to be so employed until he was dismissed in January 1993."

	After that statement of the facts, the Tribunal referred to Schedule 13 to the 1978 Act which contains the rules for computation of the period of employment.  The relevant paragraph quoted by the Tribunal was paragraph 9:

		"(1)	If in any week the employee is, for the whole or part of the week-
			(c)	absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for all or any purposes, 
			that week shall, notwithstanding that it does not fall under paragraph 3, 4 or 5, count as a period of employment."

	In the light of that provision the Tribunal considered the position of Mr Rahmouni and concluded in paragraph 6:

		"Mr Rahmouni told us that he went to Germany for a break; and we find that when he did so there was no arrangement with Mr Bader as to what might be the position on this return.  In those circumstances we are unanimous in finding that the provision of the paragraph in the Schedule 13 above mentioned do not avail Mr Rahmouni.  He was not absent by arrangement and clearly custom cannot apply."

	In those circumstances the Tribunal concluded that there was no jurisdiction to hear the complaint.

	Mr Rahmouni was dissatisfied with that decision and appealed by Notice of Appeal, received in the Employment Appeal Tribunal on the 20 October 1993.  Mr Rahmouni now has Solicitors and Counsel.  His Counsel, Mr Roebuck, submitted that there was an error of law in the decision of the Tribunal.  There was a breach of the rules of natural justice.  His argument was that Mr Rahmouni did not have a fair hearing before the Industrial Tribunal because, when he arrived at the hearing, he had to meet a different case than was foreshadowed in the Notice of Appearance.

	The case raised by Mr Bader in the IT3 is what may be called the "Company point";  that is that Mr Rahmouni had not served for two years as his employment only began with Wheelmore Limited on the 1 July 1992.  The case advanced by the Respondents at the hearing was a different one; namely, that there was, prior to the 1 July 1992, a gap in Mr Rahmouni's service at the Rifleman Inn Solomon Restaurant, i.e. a break in Germany and that break did not fall within paragraph 9(1)(c) of Schedule 13 to the 1978 Act, and therefore he had not had two years continuous employment.  

	Mr Roebuck said that the real disadvantage for his client was he had to meet a different case than was foreshadowed.  He was not prepared with the necessary ammunition to meet that case.  There had been no discovery of documents relevant to that point from Mr Bader, or from Wheelmore Limited.  If that point had been raised in the IT3 application may have been made for documents relevant to the issue, whether Mr Rahmouni had ceased to be employed by Mr Bader (or Wheelmore Limited) during his absence in Germany, or whether it was merely an absence on holiday or some other form of temporary absence which occurred during the currency of the contract of employment.  

	Against this, Mr Battcock presented an excellent argument.  He said forcefully that there was nothing in this appeal.  The point raised by the IT3 was whether Mr Rahmouni had the necessary minimum two year period of continuous service.  That was the point which the Tribunal decided.  The Tribunal decided it against Mr Rahmouni.  What Mr Rahmouni was now trying to do was to have what he described as "second bite at the cherry".  As a general principle, an Applicant to an Industrial Tribunal, like a plaintiff in any form of legal proceedings, should bring forward at the same time all his oral and documentary evidence.  Once the Tribunal has made a decision on the facts it is not open, on an appeal. to seek to have re-hearing simply because there may be other material available which could have been obtained by reasonable efforts at the time.  This was merely an attempt to get a re-hearing in the hope of securing a different result on the facts.  

	As to Mr Roebuck's complaint that there might be documents which had not been sought, relevant to the issue of the break in Germany, Mr Battcock submitted that either there would be no documents, in which case there is an overwhelming probability that the Tribunal would come to the very same decision as on the earlier occasion in August 1993, or, if there were documents, such as contractual documents or tax documents, they were more likely to be favourable to the Respondent's case than to Mr Rahmouni's.  

	Mr Battcock also emphasised, quite rightly, the informal nature of Industrial Tribunal proceedings.  The IT1 and the IT3 are not to be regarded in such strict a light as pleadings in ordinary civil actions.  He submitted that there had no breach of the rules of natural justice. Both sides had given evidence.  Mr Rahmouni, as appeared from the evidence he had given, was aware that he had to deal with his break in Germany.  The Tribunal had simply not accepted his evidence as establishing the necessary two year minimum period.  Mr Battcock pointed out that Mr Rahmouni had never attempted to obtain any documents of any kind from the Respondents, even relating to the "Company point".  This supported his submission that this was an attempt to have "another go".  

	These rival arguments have been well presented.  The Tribunal is grateful to Counsel for the assistance they have given.  Despite the strong submissions of Mr Battcock, the Tribunal has a serious sense of unease about this decision.  We make it clear that no criticism is intended of the Tribunal.  For the reasons explained they were faced with a difficult situation; an Applicant with little grasp of English and no legal representation; a Respondent represented by a Director.

	We have decided to allow the appeal and to remit this matter to a differently constituted Tribunal for these reasons.  There is a fundamental duty on all Tribunals to conduct the hearing in a manner appropriate to the clarification of the issues and to the just handling of the proceedings.  This duty is given express form in Rule 9(1) of the Industrial Tribunals Regulations 1993.  Unless the issues have been correctly identified and clarified for the parties to prepare their respective cases on them, there is a serious risk that the proceedings will not be justly handled, either because the relevant oral and documentary evidence may not be available, or because the parties have not come prepared with the necessary arguments.  

	In this case we are impressed by Mr Roebuck's submission that the IT3 completed by Mr Bader led Mr Rahmouni, and those who advised him up to the time when he appeared before the Tribunal, to believe that the only issue relevant to the two years service point was that Wheelmore Limited commenced carrying on the business of the Rifleman Inn in July 1992 and that Mr Rahmouni's service with that Company only commenced them.

	In fact, as the decision of the Tribunal reveals, there was an earlier history, not foreshadowed in the IT3, relevant to the question of the two year service point.  As the Tribunal noted, it appeared that Mr Rahmouni had been a waiter at the restaurant since 1989.  There had been an earlier Company.  It appears from a passport, which we have been shown during the course of the hearing, that the Tribunal may well have been at least one year out in its statement that Mr Rahmouni went to Germany in 1992.  It appears from the passport that he went to Germany in the early part of 1991, from about April to June.  This fact is indicative of the difficulties that the Tribunal faced in dealing with this case.  

	It is our view that the decision of the Tribunal reveals an error of law.  The error of law was a failure to give Mr Rahmouni a fair hearing.  The failure to give a fair hearing was in the late clarification of the real issue was between the parties.  It would have been better for the just handling of the proceedings for the matter to be adjourned so that the parties could then reconsider the evidence and arguments that they wished to bring forward.  We are of the view that no adjournment was sought because there was no qualified or experienced legal representative on either side to deal with the situation.  The Tribunal grappled with the problem as best they could, but, in the end, in our view, failed to deal with the matter in a way consistent with the Rules of natural justice.  

	In those circumstances the decision is an unsafe one.  It may be, on further examination, that another Tribunal will come to the same decision.  We do not know.  We do not know what further facts may be unearthed by investigation.  It may be that, even if jurisdiction is established, Mr Rahmouni has no case for unfair dismissal.  We express no view.  That is a matter which has not yet been investigated by any Tribunal.  We are still at the stage of establishing jurisdiction.  

	In these circumstances, the proper course to take is to remit the matter to another Industrial Tribunal to determine the two year employment point in the light of the issue which has now been clarified, i.e. whether a break by Mr Rahmouni in Germany in 1991, or at any other time after his commenced employment at the Rifleman Inn, had any effect on the continuity of his employment at the restaurant. 

	For those reasons we shall allow the appeal and remit this matter to a different Tribunal.