Employment Flash - 4th June 2010

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All reasons required (most probably) for a valid notice of appeal...

Yorkshire Window Company Ltd v Parkes [2010] UKEAT 0484 09 SM

This is an unusual case in that the Employment Tribunal gave an extempore judgement in relation to the larger part of the issues before them but adjourned off one issue for the parties to make written submissions only upon. The ET provided a written judgement in relation to this issue.

YWC appealed. The appeal was against the ET's decision on the latter issue. YWC included in their appeal notice a copy of the written judgement relating to this issue but did not include any version of the extempore judgement or explain why there was no such document. A note of the extempore judgement was cobbled together for the hearing before the EAT from the notes of the advocates who had appeared before the ET. The position was not wholly satisfactory as parts of their notes were illegible, they had not made a note of the entire judgement and the EJ had not approved the note.

The Order that related to the extempore judgement did not make clear that certain issues that related to determination of the remaining issue had been determined by the first judgement. YWC were correct in saying that appeals only lie against Orders and that an appeal was not permitted where the Order was not being challenged but the reasons were.

However, as there had only been one hearing when evidence was heard, that the written submissions were to address one issue, that other issues relating to that one issue had already been determined, that the findings of fact in the extempore judgement were more comprehensive than as set out in the written judgement and that they set the scene for the subsequent written submissions and judgement, then this was an instance of there being one decision recorded in two separate judgements. Accordingly the reasons for the first decision should have formed part of the notice of appeal and it was not therefore properly lodged. The EAT put down the marker that in future where an ET has given a decision in more than one tranche, the reasons for each decision must be served with the Notice of Appeal "or it is likely the appeal will be held not to have been properly constituted and will not be accepted" [my italics for the 'never say never' caveat].

The EAT nevertheless determined the appeal on the merits as P did not wish to take the point. The headnote provides the EAT's summary of principles derived from a survey of the authorities relating to issues of 'employee', 'worker' or 'self-employed' and can otherwise be found at paragraph 77 of the judgement, whilst the EAT's survey of this area begins at paragraph 50.

NB: Autoclenz Ltd v Belcher [2010] IRLR 70 may be considered by the Supreme Court.