Adepoju v Whitbread

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS


At the Tribunal
On 11 May 2001



Before
HER HONOUR JUDGE A WAKEFIELD
MISS A MACKIE OBE
MS G MILLS





MS A A ADEPOJU APPELLANT






WHITBREAD PLC T/A WHITBREAD HOTELS RESPONDENT



Transcript of Proceedings

JUDGMENT


Revised












APPEARANCES





For the Appellant
MR CHANDRA SEKAR
(Of Counsel)
Free Representation Unit
4th Floor
Peer House
814 Verulam Street
London WC1X 8LZ
For the Respondent
MR SIMON GORTON
(Of Counsel)
Messrs Weightmans Solicitors
41 Spring Gardens
Manchester
M2 2BG


JUDGE A WAKEFIELD

1. This is an appeal by Ms Alice Adepoju against a decision of an Employment Tribunal sitting at London North on 16 May 2000, whereby it was determined, as a preliminary point, that she was not an employee of the Respondent within the definition of Section 230(1) of the Employment Rights Act 1996.

2. In the Originating Application presented on 9 March 2000, the Appellant made complaints in respect of breach of contract, discrimination and unfair dismissal. She had done work for the Respondent as a waitress between September 1988 and 20 December 1999 when the arrangement was terminated by the Respondents.

3. The appeal is made as permitted by a judgement of this Appeal Tribunal at a hearing on 15 November 2000, on grounds of the inadequacy of the Employment Tribunal decision as regards the parties being able to understand the reasoning and basis for the Employment Tribunal’s conclusions.

4. In the extended reasons for the decision, the Employment Tribunal stated a number of propositions in paragraphs 1-5 which are apparently findings of fact, although it is not so stated expressly, nor is there any reference to the evidence on the basis of which such findings were made.

5. The Chairman’s notes of evidence, which were provided pursuant to an order of this Appeal Tribunal, have not been of great assistance to us. Since they reflect what was apparently a hearing which took in excess of three hours, we are very surprised at the brevity of the notes and the absence of any reference in them to legal submissions made by the parties’ representatives.
6. Having set out the apparent findings of fact in paragraphs 1-5 of the decision, the Employment Tribunal then stated that they were referred to four authorities which are named with references. The reasons for the Tribunal’s conclusions do not however give any hint of the way, if any, in which those authorities were relevant to the decision they had to make, nor are any propositions of law stated to which the Tribunal deferred in reaching their decision.

7. The conclusion of the Employment Tribunal as to the status of the Applicant is set out under the heading “Generally”. In a crucial sentence the decision states:

“We find that she is not an employee, primarily because there was there was no lack of mutuality in the relationship.”

The double negative is clearly a typographical error.

8. While this Tribunal accepts that an Employment Tribunal decision does not have to be an elaborate formalistic product of refined legal draughtsmanship, as stated by Lord Justice Bingham in Meek v City of Birmingham District Council [1987] IRLR 250, it is essential that the Employment Tribunal provides the parties with the material which will enable them to know that no error of law has been made in the progress to its conclusions, both in terms of the findings of fact and of the application of the law to those facts.

9. We are not satisfied that in this case the Employment Tribunal adequately performed that task. Without ourselves going into the merits of the Appellant’s claim to have had a contract of employment with the Respondent, we consider that the decision of the Employment Tribunal is so defective in content that an error of law has been demonstrated.

10. The preliminary point on the Appellant’s Originating Application must therefore be remitted to be reheard by a differently constituted Employment Tribunal.