The first respondent, who had employed the claimant from September 2010, had a contractual arrangement with the second respondent for the supply of crew members. The claimant, who was a seafarer, made a number of statements to the second respondent concerning the vessel in which he was a crew member.  As a result, the second respondent lost all faith in the claimant's ability to perform to the standard required and considered that it was a health and safety risk to keep the claimant on the vessel and so removed him from the vessel. The second respondent then informed the first respondent that he would no longer be accepted on any of the vessels operated by them. The claimant was dismissed by the first respondent and he claimed unfair dismissal, naming both respondents in his claim form.  The claimant asserted he had been employed by the second respondents and that his employment commenced in 2004.  The ET did not uphold that claim at the PHR and found that he was employed by the first respondent between September 2011 and March 2012.  The claimant sought a review of that judgment but did not seek to argue that that determination was incorrect.  Instead he sought to argue that as well as being an employee of the first respondent and entitled by s.103A of ERA to claim that he had been unfairly dismissed by the first respondent, he was also entitled to argue that the second respondent was his employer by virtue of s.43K(2)(a) of ERA.  The respondents' written submissions objected to there being a review, but also gave their arguments on the s.43K point, and asserted that the point had been dealt with by implication in the original decision. The ET upheld their original decision and the claimant appealed.

The EAT allowed the appeal. At review the ET should have been asked to consider firstly whether a new point was being raised. If there was no new point, but an argument that a point already raised had been wrongly decided, then argument on that should have followed.  If it was held to be a new point, the ET should have been asked to consider whether that new point required amendment.  If it did, then the ET should have been asked if it was prepared to allow amendment, in light of the nature of the claim and any arguments made on time bar.  If a decision was reached that the new point could be considered, the arguments should have been made and a decision given. The decision on review did not deal with these points.

_______________

Appeal No. UKEATS/0049/12/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 17 April 2013

Before

THE HONOURABLE LADY STACEY

(SITTING ALONE)

MR THAJUDEEN (APPELLANT)

(1) DEESIDE (GUERNSEY) LTD

(2) VROON OFFSHORE SERVICES LTD (RESPONDENTS)

JUDGMENT

For the Appellant
MS SALLY ROBERTSON (of Counsel)
Instructed by:
Smith May Solicitors LLP
14 Barnwell House
Barnwell Business Park
Barnwell Drive
Cambridge
CB5 8UU

For the Respondents
MS KATIE WILLIAMS (Solicitor)
Mackinnons Solicitors
14 Carden Place
Aberdeen
AB10 1UR

CONTRACT OF EMPLOYMENT – Whether established

JURISDICTIONAL POINTS – Agency relationships

Decision made on review - new matter sought to be argued in written submissions. The Employment Tribunal agreed to review, but did not deal with the new matter. Held that the ET erred in law. Case remitted back to the ET to reconsider request for review.

1. This case called as a full hearing before me as an appeal from the judgment of the Employment Tribunal (ET), Employment Judge Henry sitting alone, in Aberdeen on a review of an earlier judgment made at a pre-hearing review (PHR). I apologise for the time taken to produce this judgment. I will refer to the parties as the Claimant, First Respondent and Second Respondent.

1. The Claimant wishes to argue a point, said not to be the subject of any decision thus far, concerning the question of the Claimant being an employee of the First Respondent and therefore able to argue that he has been unfairly dismissed under s.103A of the Employment Rights Act 1996 (ERA), while at the same time being a worker vis-a-vis the Second Respondent, in terms of s.43K(1)(a) of ERA so that by s.43K(2)(a) for the purposes of Part IVA of ERA, the Second Respondent was also the Claimant's employer. I have decided that this should be argued at first instance and as will be seen that from my judgment it is for the Claimant to decide whether or not to seek to amend the existing pleadings.

1. I have decided that the ET erred in law and that the case should be remitted to the same ET in order that a decision on the question of what claims are before the ET, and a decision on those claims, if appropriate, can be made. In light of my decision, I do not intend to give any view on the substantive matters aired before me. I am conscious that parties prepared fully for the argument and addressed me, but I have come to the view that the correct disposal is to remit and for parties to consider what they wish to put before the ET.

1. At the PHR the ET made findings in fact, which are not disputed, to the following effect. The Claimant is a seafarer, with the rank of Chief Engineer. The First Respondent is a company incorporated in Guernsey. It provides marine crews for standby vessels that work in the North Sea for oil and gas operators. It has a contractual arrangement with a company based in Aberdeen called Deeside Crewing Services Limited which provides support for the First Respondent's employees. That company deals with employment contracts on behalf of the First Respondent. The Second Respondents are a family owned company who manage the deployment of ships on behalf of the ship's owners ensuring that they work profitably and safely. They provide policies and instructions on how the vessels are to be operated. They have approximately 50 vessels working in the North Sea.

1. Further, the ET found that the Claimant had been employed by a company BUE Cyprus Ltd to work on vessels managed by the Second Respondent in 2004. That company also had an arrangement with Deeside Crewing Services Ltd to provide support for their employees. In May 2009 the Claimant advised that he required extended leave for family reasons. It was granted. At the end of that month when he was available for work he was told that there were no vessels available. He registered with other agencies and accepted an offer of work with a competitor. Deeside Crewing Services Ltd noted that the Claimant had not worked for them for some months and as was their practice terminated his contract in February 2010. In March 2010 there was a transfer of the employment contracts of crews from BUE Cyprus Ltd to the First Respondent. The First Respondent wrote to existing employees advising of the transfer to take effect from the 1 April 2010. They wrote to the Claimant having been told, in error, that he was still an employee. They sent a contract of employment to him which he returned in March 2010.

1. The Claimant contacted Deeside Crewing Services Ltd on 10 August 2010 advising them that he was available for work. At that stage that company discovered that he was not an employee and treated him as a "new start" and he became an employee of the First Respondent from 21 September 2010.

1. The Claimant worked on a vessel "VOS Supplier" until March 2011. In circumstances which I will narrate below, he was removed from the vessel and shortly thereafter was dismissed by the First Respondent. He submitted an ET1 received on 2 June 2011. He ticked the box claiming unfair dismissal and stating that he was owed notice pay, holiday pay, arrears of pay and other payments. He entered the names of both First and Second Respondents in the part of the form in which he was requested to name his employer or the organisation that he was claiming against. In the narrative part of the form he stated that he was employed by the Second Respondent since 2004. He stated that his employment continued with the same company but that the company had changed its name and insisted that he sign a contract as and when they changed the name, and in other circumstances. He stated that he had noticed an oil leak and various other problems on the ship. He considered, based on his professional experience, that the leak was serious and would be dangerous to the public. He said that therefore he reported this to the management and that they repeatedly requested him to confirm that the leak was "not that serious and to confirm that there was no leak." He maintained that the leak was serious and was dangerous to the public, polluting the sea. He stated that the company terminated his contract based on the fact of his report that the ship was not fit for service and that he held that his dismissal was unfair. He stated that his employer was rather aggressive and threatening when he refused to accept the request to confirm. He stated "they terminated me on board at sea on 1 March 2010 and send me to the show (sic) by a boat as a result I have sustained pain and especially in my neck and hand."

1. The First Respondent lodged an ET3 in which it is stated that the Claimant was employed by it in a contract of employment dated 21 September 2010. They narrated the Claimant's previous employment with BUE Cyprus Ltd between 2004 and 2009. They stated that the First Respondent has a contractual arrangement with the Second Respondent for the supply of crew members. They stated that the Claimant joined a vessel on 18 February 2011 and was removed partway through the trip, on 1 March 2011. During the trip the Claimant made a number of statements to the Second Respondent concerning the vessel. The Second Respondent regarded the information being provided as questionable. It is stated that because contradictory information was supplied by the Claimant, his technical competence came into question. The Second Respondent lost all faith in the Claimant's ability to perform to the standard required by a Chief Engineer. The Second Respondent considered that it was a health and safety risk to keep the Claimant on the vessel and so removed him from the vessel two weeks early. The Second Respondent then informed Deeside Crewing Services Ltd that the Claimant would not be accepted on any of the vessels operated by them by reason of his incompetence. Deeside Crewing Services Ltd met with the Claimant to discuss his performance and reported the findings of this meeting to the First Respondent. The First Respondent decided to terminate the Claimant's employment on the grounds of his inability to complete his duties to the required standard during his probationary period. The Claimant sought a reconsideration of that decision and the First Respondent decided to confirm the dismissal.

1. The First Respondent then goes on in the form to deny that the statements made by the Claimant constitute a qualifying disclosure in terms of Part IV A of ERA. If the Claimant did make any qualifying disclosures, the First Respondent denied that the dismissal was by reason of any disclosure or that he was otherwise subjected to any detriment in respect of them. The First Respondent asserted that the Claimant had insufficient continuous service in terms of section 108 of ERA to raise an unfair dismissal claim. It denied that any sums in respect of notice or holiday pay or anything else were due.

1. The Second Respondent lodged an ET 3 stating that the Claimant did not have a contract of employment, whether express or implied, with the Second Respondent. They asserted that the Claimant was employed by the First Respondent.

1. Thus it can be seen that the ET1 and both ET3 forms showed that there was, on the face of them, a dispute between the Claimant and the Respondents as to the events which had happened, but more importantly for the purposes of this case at this stage, as to who the Claimant's employer was. Therefore a PHR was fixed to determine two preliminary issues, namely the identity of the true employer and the start date of the Claimant's employment.

1. The Claimant was represented at that hearing by Mr McGuire, advocate, and both Respondents were represented by Ms Rennie, solicitor. The decision reached by the ET was that the Claimant's final period of employment with the First Respondent began on 21 September 2010 and that the Claimant's employer at the date of his dismissal was the First Respondent. In the reasons given for that decision it is clear that the focus was on the Claimant's position that he was employed by the Second Respondent. Counsel invited the ET to consider the reality of the situation and made submissions based on the well-known case of Ready Mixed Concrete (South East) Ltd -v- Minister of Pensions [1968] 2 QB 497. There was some conflict in the evidence between the Claimant and witnesses called for the Respondents. The solicitor for the Respondents submitted that the arrangement by which the Claimant was employed was well known within the industry and was not in any way a sham. She referred to the case of Tilson -v- Alstom Transport A2 /2009/2611/EATRF. The ET set out its decision with reasons comprising 17 paragraphs. Those reasons discussed the submissions of parties' representatives and include reference to workers employed by agencies. It is clear from the last paragraph that the question which the ET dealt with related to the submissions put by parties to the effect that control was exercised by the Second Respondent. The ET did not accept that and found that the Claimant was employed by the First Respondent although working on board a vessel operated by the Second Respondent.

1. The solicitors acting for the Claimant wrote to the ET on 9 May 2012 referring to the PHR and stating: –

"The 2 issues that were to be addressed at the PHR were: (a) the identity of the employer and (b) whether there was continuity of employment.

The decision of the ET was that:

1. The claimant's final period of employment with the first respondents began on 21 September 2010.

2. The claimant's employers were the first respondent at the date of his dismissal.

3. That the proceedings are dismissed against the second respondents.

The claimant's claims are for "normal" unfair dismissal under s.98 ERA and also unfair dismissal under s.103A ERA. It is clear from the judgment that the issues relating to the identity of the employer as defined under s.230 ERA were determined at the PHR.

**We submit, however, that the identity of the employer under 43 K (1) (a) and 43 K (2) (a) of the Public Interest Disclosure Act 1998 (PIDA) was not considered. Submissions were not heard on the extended definition of employer under PIDA and we understand from counsel that employment judge Henry stated that if submissions on the point had not been made he could not make a determination on this.**

We therefore apply under regulation 34 (3) (e) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004 for a review of employment judge Henry's judgment in respect of the dismissal of the claim for unfair dismissal under S 103 A ERA against the second respondents.

We enclose the witness statement of one of the respondent's witnesses, Heather Hughes, that was produced for the PHR and refer the tribunal to paragraph 8. In light of her comments we submit that it is in the interests of justice for the judgment to be reviewed." [Emphasis added]

1. Thus the Claimant's solicitors sought a review of the decision made at the PHR on the basis that submissions on the 'extended definition of the employer under PIDA' were not heard. At first sight that seems an odd basis on which to seek a review. (I should also say witness statement to which reference was made in paragraph 8 does not on its face deal with protected disclosures.) The solicitors produced written submissions for the review. In those submissions they stated, amongst other things, the following: –

"The claimant submits, however, that he falls within the definition of "worker" under s43 K (1) (a) ERA and VOS [the second respondent] falls within the extended definition of "employer" under 43K (2)(a) and therefore VOS should remain as second respondent in respect of the claim that he suffered a detriment under s47 B ERA."

The submissions detail an argument concerning the protection afforded by PIDA.

1. The Respondent's solicitors wrote a letter, not produced before me in which they objected to the review being held. They also lodged written submissions in response. They objected to the review being held. Having done so, they asserted that there is no such extended definition as was referred to by the Claimant's solicitors, giving details of their arguments in support of that contention. They then made a variety of arguments concerning the control test for employment and cases concerning persons employed by agencies. They stated that the ET had dealt with the matter now argued, not explicitly, but by implication.

1. The Claimant's solicitors lodged further submissions in which they set out arguments concerning the protection which they argued that their client was entitled to under the "whistleblowing legislation". They stated that he should be permitted to pursue a claim against the Second Respondent under s47B in addition to the claim under s103A against the First Respondent.

1. On 15 June 2012 the solicitors for the Respondents advised the ET that they did not consider an oral hearing to be necessary and that matters could be dealt with most efficiently and effectively through consideration of written submissions already submitted together with an updated submission which they attached. In that updated submission, the solicitors for the Respondents made arguments relating to the law on protected disclosures.

1. The review hearing was held in Aberdeen on 4 July 2012. The decision was that the Claimant's application for review of the judgment was granted and following consideration of the written submissions, the ET declined to vary or provoke the judgment but confirmed its terms. The ET stated: –

"It was with some hesitation that the application for review was granted by me. The issues surrounding the true identity of the claimant's employers were canvassed fully at the hearing that took place in March. Evidence was led about the situation that pertained and practice around the engagement of the claimant and other crew.

The primary position taken by counsel for the claimant at the PHR was that the true employers were the second respondents but that in the alternative it was the first respondents. On checking my notes it was apparent that although the definition of the employer in terms of sections 43K and 43k (sic) of the Act may have been mentioned in passing counsel for the claimant, quite properly in my view, focused on what might be regarded as the more general legal tests used to identify an employer/employee relationship. I indicated, as reflected in the claimant's solicitor's letter, that I could not deal with the submissions that were not made to me. No argument was presented in relation to the specific terms of the sections or that they would assist in some way in coming to the correct conclusion. Nevertheless in fairness to the claimant and given that this is a matter of some considerable importance to him I allowed the review to proceed in order that this argument to be considered as I accepted that it was in the interests of justice to do so."

1. The judgment then goes on to quote the terms of section 43 K of ERA. It is noted that these provisions in turn refer to and modify s230 of the Act. The ET then states that it is not accepted that the ET required to have regard to the definitions contained in these sections if, following consideration of the matter, the decision was that the First Respondent were the true employers applying the legal tests that the ET had been asked to apply. It is stated that even if the ET had been referred specifically to the sections they would have had no impact on the decision as the ET was satisfied that the First Respondent employed the Claimant under a valid contract of employment. There are then some observations made about agency workers and the ET comments that the witness statement to which it was referred contained nothing which would indicate an employment relationship. The judgment ends with a confirmation of the terms of the original judgment.

1. It has been necessary to narrate at length the events which led to the confirmation of the judgment because at the hearing before me it was argued on behalf of the Respondents that the Claimant was seeking to introduce a new claim in his application for review. That argument was anticipated by counsel for the Claimant, who stated that if it was made, the answer to it was that there was no cross appeal on the allowance of a review. Counsel argued that the matter she wanted to argue, that is that the Second Respondent should remain in the case by operation of s43K (1) (a) and (2) (a), was before the ET at the review. If the Respondent wished to argue that it should not have been considered, then it should have cross appealed.

1. While the solicitors for the Respondents did object to there being a review, in their written submissions they set out their answers to the submissions made by the Claimant's solicitors on the new point. Counsel for the Claimant argued that by doing so the solicitors for the Respondents had entered into the argument which had been raised on behalf of the Claimant. She argued that the ET had erred in law in rejecting that argument and in failing to give proper reasons for that rejection.

1. The solicitor for the Respondents argued that it was untenable to state that the Respondents had accepted that a detriment complaint had been pleaded in the claim form. She said that no claim under s47B is discernible from the claim form. Any such claim should be the subject of amendment and would be objected to as time barred. She went on to address me on the substance of the claim under that section.

1. The Respondents objected to the review, but provided written arguments on the basis that review may be allowed despite their objection. Thus the ET was provided with extensive written submissions by both parties. There was a procedural problem in that counsel for the Claimant told me that the Claimant's solicitors did not receive the Respondents' updated submissions, but she accepted that the ET did, and she made nothing of it. The ET agreed to hold a review, albeit with some hesitation.

1. The decision to confirm the original decision made at the PHR did not deal with all of the matters raised in the written submissions. It is understandable given the context that this happened. It was a review of a decision taken after evidence in which the Claimant asserted he had been employed by the Second Respondents and that his employment commenced in 2004. The ET did not uphold that claim at the PHR and found that he was employed by the First Respondent between September 2011 and March 2012. The Claimant did not seek to argue on review that that determination was incorrect. Instead he sought to argue that as well as being an employee of the First Respondent and entitled by s.103A of ERA to claim that he had been unfairly dismissed by the First Respondent, he was also entitled to argue that the Second Respondent was his employer by virtue of s.43K(2)(a) of ERA. The Respondents' written submissions objected to there being a review, but also gave their arguments on the s.43K point, and as stated above asserted that the point had been dealt with by implication in the original decision.

1. I have every sympathy for the ET which was faced with a confusing situation, but I have decided that the decision does not cover all matters raised. At review the ET should have been asked to consider firstly whether a new point was being raised. If there was no new point, but an argument that a point already raised had been wrongly decided, then argument on that should have followed. If it was held to be a new point, the ET should have been asked to consider whether that new point required amendment. If it did, then the ET should have been asked if it was prepared to allow amendment, in light of the nature of the claim and any arguments made on time bar. If a decision was reached that the new point could be considered, the arguments should have been made and a decision given.

1. The decision on review does not deal with the points set out above. The ET states that s.43K was mentioned only in passing at the PHR, and states that it could not deal with a submission not made. It goes on however to allow review to take place. The rest of the decision bears to deal with s.43K but it does not reflect the written arguments put by either party. It does not engage with the argument that the Claimant made that he had a relationship with both Respondents at the same time. It does not deal with arguments put by the Respondent in opposition. Rather it deals with the significance or lack of it that the section has to the question of who was the employer.

1. Counsel for the Claimant argued that if I allowed the appeal I should decide that the decision to dismiss the case against the Second Respondent was wrong, and that I should reverse that decision. Failing that, I should remit to a freshly constituted ET. The solicitor for the Respondent argued that I should refuse the appeal, and failing that, if I found that the reasons given were inadequate, I should direct the ET to supplement or clarify its reasons before I determined the appeal, as in the case of Barke v SEETEC Business Technology Centre [2005] IRLR 633.

1. I have decided that the appeal must be granted, on the basis that the decision does not deal with all the matters raised. I can see no reason why it should not be remitted to the same ET, in order that the application for review is heard again. It is for the Claimant to consider whether or not to seek permission to amend as part of the application for review.