Appeal No.	 EAT/93/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 January 1998

Before
HIS HONOUR JUDGE C SMITH QC
SIR GAVIN LAIRD CBE
MRS M E SUNDERLAND JP

MR N ABAIR	APPELLANT

THE CARLTON TOWER LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR C DABEZIES
Solicitor
Kensington Citizen Advice Bureau
140 Ladbroke Grove
London W10 5ND	
For the Respondent	MR J BENNETT
Employee Relations Advisor
3 Meadow Close
Marlow
Slough SL7 1QJ	

	JUDGE C SMITH QC:  This is an appeal by the Applicant before the Industrial Tribunal, Mr Abair, against the decision of an Industrial Tribunal held at Stratford, the Chairman, Ms Lewzey, sitting alone, on 11 November 1996 for which extended reasons were sent to the parties on 19 November 1996, when the Industrial Tribunal held that Applicant was not an employee of the Respondents, The Carlton Tower Ltd, trading as Hyatt Carlton Tower, within the meaning of s.230 of the 1996 Act.

	Put very shortly, it appeared from the decision of the Industrial Tribunal that the Appellant had been working for the Respondents as a silver service waiter in the banqueting department on a casual basis from April 1991 until 31 March 1996, when the banqueting suite was closed down and, therefore, there was no further work for him, so the substance of the issue would have been whether he unfairly dismissed on the grounds of redundancy but what the Tribunal had to decide was the preliminary issue as to whether he was or was not an employee.  

	The position is this:  we have been told by Mr Dabezies, who appears on behalf of the Appellant today and this has been very properly and realistically confirmed by Mr Bennett who, of course, appeared for the Respondents before the Industrial Tribunal, that the parties are agreed that this matter should be remitted for a fresh hearing before a differently constituted Industrial Tribunal and the reason is as follows:  Mr Bennett accepts that there was an argument addressed to the Industrial Tribunal by both sides based upon their respective constructions of the evidence that was before the Industrial Tribunal.  That was an argument addressed on behalf of the Appellant that even if he was not employed on an indefinite basis between 1991 and 1996 it was submitted on his behalf that he was employed arguably on the basis of a series of daily contracts, so that it was submitted that there was mutuality of obligation on a daily basis or perhaps on a weekly basis and that was a contention that was put forward on his behalf at the Industrial Tribunal.  There is a recent authority on the position of daily contracts, namely, the case of Brown v the Chief Adjudication Officer [1997] ICR 266 in the Court of Appeal.  Although argument was addressed on both sides (because Mr Bennett challenged that contention and submitted that this was not a situation where there could be said to be daily or weekly contracts because for one reason there were not the necessary fixed hours) the Industrial Tribunal does not deal with the point.  The point of all this is that it is apparent from the decision of the Industrial Tribunal which was a careful decision, in our judgment, in all other respects, that there is simply no reference to these rival submissions at all, in other words the Chair does not deal with this particular argument one way or the other and makes no findings of fact really in relation to it or, certainly, no findings of fact directly germane to it, although she does find that working days were long and that Mr Abair could start at 9 am and finish at 11 pm or later, but there were no findings of fact that seemed to be directly addressed to this particular issue and there certainly is no reference to the arguments or any findings relating to that.  For that reason, the parties have come to an agreement that, with our approval, this matter will have to remitted to a differently constituted Industrial Tribunal, as they have agreed, so that the whole matter can be reconsidered, including this particular argument.  We agree with the consensus that the parties have reached, which we think is a sensible one.  

	We note that Mr Bennett strongly resists the other grounds of appeal and, of course, the Appellant would have strongly submitted that on those grounds as well the Industrial Tribunal had gone wrong in some way.  We think it better, since the whole matter is to be reconsidered by a fresh Tribunal, that we do not express any views one way or the other with regard to that aspect of the matter, save to say we are not in any way being critical of the way this was dealt with by the Industrial Tribunal, it was plainly dealt with with care, it is simply that, as can happen for one reason or another, a particular argument which was ventilated has not been dealt with in the decision and it is for that reason alone that we endorse the agreement reached between the experienced practitioners who appear before us today that exceptionally we can consent to this case being remitted to a fresh tribunal and that is the order we make.  I suppose we should say, therefore, that the appeal is allowed by virtue of the agreement that has been reached between the parties and by virtue of the fact that we endorse the agreement for the reasons that we have shortly stated and the case will therefore be remitted to the Industrial Tribunal at London (North) to be heard afresh by a differently constituted Tribunal.