Appeal No. EAT/1021/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 January 2002

Before
MR COMMISSIONER HOWELL QC
MR R N STRAKER
MR G H WRIGHT MBE

MR R BACHNAK	APPELLANT

EMERGING MARKETS PARTNERSHIP (EUROPE) LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR O BELLINFANTIE
(of Counsel)
Instructed by:
Steele & Co
Solicitors
11 Guilford Street
London WC1N 1DH	

MR COMMISSIONER HOWELL QC

1	Having heard Mr Bellinfantie for the Appellants on the preliminary hearing of this appeal, we are satisfied that there are grounds to warrant our directing a full hearing of this case before the EAT.  We will explain quickly the questions we think ought to be the issues for the main hearing, and those are as follows:

2	First of all, we are satisfied, that it is arguable that the London Central Employment Tribunal, which dealt with this case on 29 June 2001 in the way set out its Extended Reasons sent to the parties on 17 July 2001, misdirected itself in law, in not holding that the terms and conditions of fixed term employment, referred to in paragraph 5 of the Tribunal’s Extended Reasons were, on their true construction and effect, a contract of employment between the Applicant and the Respondent.  That arises in relation to either those terms on their own, and further alternatively, those terms in conjunction with the advisory agreement also referred to in that paragraph.  So that is the first issue: misconstruction of the documents.

3	The second issue, in the alternative, is that the Tribunal erred in failing to record sufficient findings of fact and reasons to explain their conclusion that those documents did not amount to a contract of employment; and thirdly, that the Tribunal erred in failing to address a material issue on the case before them on the apparent need for a continuing contract of employment, after 23 October 2000, in order to protect Mr Bachnak’s immigration status. The reasons for that are made entirely clear in paragraph 14 of the Respondent’s Notice of Appearance at the Tribunal, which is on page 20 of the appeal file before us. 

4	We will direct that those three issues should be the subject of a full inter partes hearing of this appeal before the Employment Appeal Tribunal.  We will direct the Appellant to amend the Notice of Appeal, so as to identify those three issues of law, for the other side and for the full Tribunal to consider.  We are satisfied that all the existing paragraphs of the Notice of Appeal, which can for practical purposes remain in there, really amount to matters of argument and comment, each one of which falls under one or other of the three heads of appeal that we have identified.  

5	So we will direct a full hearing, and direct that an amended Notice of Appeal be lodged within twenty one days of today.  The appeal should be set down for full hearing, listing category C, estimated length of hearing, one day.  As always, it is implied that if either side finds that a day is an underestimate by the time they are actually preparing for the hearing, they should notify the listing authorities as quickly as possible.
  
No need for Chairman’s Notes on our present view of the matter, but we will direct that there should be added to the appeal file, for the full hearing, the three documents helpfully handed up to us, and those are:  (1) Mr Bachnak’s original terms and conditions of employment, dated October 1999; (2) the covering letter and further terms and conditions of fixed term employment, dated October 2000; (3) the advisory agreement between the four companies, dated 23 October 2000.  All of those documents are vital to an understanding of the issues in the case and should be included in the appeal file.  

The only other direction is that Skeleton Arguments for the full hearing should be exchanged between the parties and lodged with the EAT office not later than fourteen days before the date to be fixed for the full hearing.