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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Metanie v. Pertemps Recruitment Partnership Ltd ((t/a Pertemps Industrial Contracts) [2001] UKEAT 1389_00_1105 (11 May 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1389_00_1105.html Cite as: [2001] UKEAT 1389_00_1105, [2001] UKEAT 1389__1105

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APPEARANCES

 

For the Appellant	IN PERSON


 


MR JUSTICE CHARLES:

1. We have before us an appeal by way of preliminary hearing. The parties to the appeal are a Mr Metanie and Pertemps Recruitment Partnership Ltd t/a Pertemps Industrial Contracts. The appeal is against a decision an Employment Tribunal acting through a Chairman sitting alone at London South. The Extended Reasons for that were sent to the parties on 3 October 2000.
2. Mr Metanie has represented himself and has put in a Notice of Appeal raising a number of points. In his Originating Application he said as follows, in box 11, which gives details of his complaint:

(1) "I am asked to sign a contract of engagement whose terms and conditions were not negotiated with me and I do not agree with.

(2) On 6.06.2000 I was threatened with dismissal if I did not sign it.

(3) From the date I was employed the Company, Pertemps, made unlawful deductions from my wages."

3. The IT3 put in on behalf of the Respondents is a typed document referring, as we read it, to their general terms of engaging temporary workers and paragraph 6 of that document reads as follows:

"At the beginning of June 2000 when the previous oversight was recognised [an alleged oversight as to Mr Metanie not appearing to sign the copy of terms of engagement] Terms of Engagement were shown to Mr Metanie and he was asked to sign them so as to regularise the situation. Mr Metanie initially refused. It was explained to Mr Metanie the basis upon which he had originally been engaged as set out in the paperwork which he signed prior to his engagement. Subsequently he signed the Terms of Engagement. This was [sent] on the 14^th June and a copy is attached hereto."

4. We have not seen the copy but we have been shown, during the course of the hearing, the bundle that was put in which contains a document headed "Terms of Engagement for Temporary Workers" and bears a signature with a date of 10 June 2000. The signature to the non-expert eye resembles that of Mr Metanie. However, he also draws our attention to another document in the bundle which is a document on its face signed by a Tara Hunt and dated 14 June, the last three paragraphs of which are in the following terms:

"Peter said he was not prepared to sign the Terms of Engagement until he had sought legal advice. I sent the attached fax to Peter on 8 June and received the attached letter in response on 13 June.

Peter had not signed his Terms of Engagement despite stating in his letter he had and they had been returned to him.

When I rang Peter to resolve the situation he said my fax was meaningless and would not discuss the details of the Employment Tribunal with me. He still stated that we were making unlawful deductions from his wages. Peter has agreed to sign the Terms of Engagement."

5. It is pointed out to us by Mr Metanie that that document is dated 14 June and is therefore on its face saying that he had not signed anything by that date but had agreed to sign something thereafter. He therefore raises the point as to how can it be that the document he showed us is dated 10 June 2000; clearly there are issues which may need investigation so far as that is concerned.
6. Turning to the Extended Reasons the Chairman of the Employment Tribunal, as he has explained in a helpful letter he has sent to us, in accordance with his practice identifies the issues as he perceived them to be in paragraph 3 and he said this:

"At the outset of the hearing on 27 July 2000 it was identified that the Applicant made two complaints namely:

(i) a failure to provide the written particulars of employment as required by section 1 of the Employment Rights Act 1996.

(ii) an unlawful deduction from wages contrary to section 13 of the Employment Rights Act 1996 namely that the Respondent had deducted National Insurance contributions at the wrong rate."

7. Mr Metanie appeals against the second issue as identified. We propose to deal with that shortly. As to that issue we see no point that is reasonably arguable because it turns, as the Extended Reasons and the Chairman's letter explains, on an interpretation of regulations and we do not give permission for any appeal in respect of those issues.
8. Turning to the first point as identified by the Chairman that does not on its face reflect the dispute raised in paragraph 1 in box 11 of the Originating Application that there was a dispute as to the terms that had been agreed and negotiated.
9. However the issue as identified in paragraph 3(i) is a far more anodyne one, namely has the relevant piece of paper with the relevant terms agreed been provided.
10. Against that identification of the issue the Chairman took what we would regard as an entirely sensible course in that he decided that he would not determine the issue as to who Mr Metanie's employer is but will proceed on the assumption that it is the Respondents. That seems to us, against a background where the identified issue was whether the relevant piece of paper had been provided, an entirely sensible and proper stance for the Chairman to take because it avoids the necessity of going into what are quite complicated issues of law, not least because Mr Metanie was representing himself but, more importantly, because to do so would be an inordinate waste of public time and money.
11. The Chairman did however hear some oral evidence from the Applicant, Mr Metanie and a Mr Rickee Miles. It may be that in hearing that evidence the Chairman was, or should have been, directed or alerted to what seems to us (and as Mr Metanie has explained was) an important issue so far as Mr Metanie saw it namely that he simply did not agree that he had been engaged upon the terms set out in the Terms of Engagement of a Temporary Worker. His case was that he had been engaged on the terms of a permanent worker at BOC.
12. It seems to us that it is arguable therefore that the Chairman, in identifying the issue that existed between the parties, erred in law in that he misunderstood what was a factor in the dispute. At this stage we hasten to add that we are only concerned with whether or not a point is reasonably arguable. We will give permission for the appeal to proceed on that basis and I will come back later to define it a little more closely.
13. In his Notice of Appeal and by way of affidavit and by then way of additional allegations contained in his skeleton argument Mr Metanie makes allegations of impropriety and bias, both against the Chairman and against the barrister who was appearing for the Respondents. Those allegations include extremely serious allegations, namely that the barrister acting for the Respondents, and as we read it also the Chairman, were involved in some collusion as to a forgery of a document. We have to say that on the documentation we have been given we see no force whatsoever in those allegations.
14. Mr Metanie explained to us that this allegation is based on an assumption he has made because his case is that he did not sign the document. With due respect to him it seemed to us that this is an unwarranted and inappropriate assumption for him to have made.
15. It seems to us that that allegation and the other allegations Mr Metanie has made as to bias and impropriety have no merit and simply fall away on the basis that as we read them the Extended Reasons show that what the Chairman and the barrister for the Respondents were concentrating on was a different issue to the one which in Mr Metanie's mind was the most important issue in the case.
16. This is reflected in the point we have identified as being reasonably arguable, namely that the Chairman erred in confining the issues in the way that he did to determining whether the piece of paper gave sufficient information as to terms of Mr Metanie's employment and not expanding them to include an issue as to what the terms of engagement agreed were and thus (if I have got my sections right) a declaration under section 11(2).
17. For those reasons we do not give permission for the points raised under the general heading of bias and impropriety to go ahead.
18. Equally, we do not give permission for the point to go ahead that the Chairman erred in not determining whether or not Mr Metanie was an employee of the Respondents.
19. It seems to us that the only points in this appeal that re reasonably arguable on this appeal are whether the Chairman erred in his identification in the issues in the manner set out earlier and whether having regard to that there was any procedural irregularity or unfairness in the way in which the issue as to the terms that were agreed was decided by the Employment Tribunal.
20. A final point we would make on that is that it seems to us that if the Chairman had appreciated that Mr Metanie's case was full square that he simply had not agreed what the Respondents were saying he had agreed, he might have thought it appropriate to sit with lay members because then issues of fact were going to have to be decided.
21. So we will give leave for this appeal to proceed on those grounds. As Mr Metanie is a litigant in person we will not require him to amend his Notice of Appeal. The grounds of this appeal will be identified by the transcript of this judgment which will be distributed between the parties when it has been typed up. To make it clear we dismiss all other grounds contained in Mr Metanie's Notice of Appeal.
22. We will give this Category B and a time estimate of half a day.

Addendum

23. At the end of the hearing counsel for the Respondents who had attended as an observer and who we had indicated deserved an apology from Mr Metanie indicated to us that the dispute as to what had been agreed with Mr Metanie was in issue in other proceedings and he would like to take instructions as to whether his clients wished to contest the appeal or take the pragmatic course of not doing so on the basis that this dispute can be determined in those other proceedings. Mr Metanie indicated that he would be content if the dispute was so decided. We indicated that if the Respondents indicated to this Tribunal that it did not wish to contest the appeal on the grounds we have allowed to proceed, then to save expense and time we would make an appropriate order. The Respondents have so indicated.
24. We therefore treat the appeal as being before us for full hearing and make no order on it on the basis that the dispute as to the terms on which Mr Metanie was engaged and if necessary and appropriate the authenticity of the document dated 10 June 2000 will be determined in other existing proceedings between him and the Respondents. In addition we give liberty to the parties to apply to restore this appeal for hearing if those matters are not decided in such existing proceedings.