United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 327_95_3110

Appeal No. EAT/327/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 31 October 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS E HART

MRS R A VICKERS

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MRS K H BELL          APPELLANT

(1) DIRECT DESIGN (NORTH) LTD

(2) HAMBLEWOOD PRODUCTS LTD           RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR J G HOLT

(Representative)

(Friend)


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal against the decision of the Industrial Tribunal held at Leeds on 16 January 1995.

The Tribunal heard a claim made by the Applicant, Mrs Bell, that she had been unfairly dismissed. She made other claims for redundancy, entitlement to written terms of employment and deductions under the Wages Act.

The claim was originally against one company, Direct Design (North) Ltd. That complaint was presented on 22 July 1994. When the matter came before the Tribunal there was a second Respondent, Hamblewood Product Ltd. The hearing on 16 January resulted in a unanimous decision of the Tribunal that all the claims against Hamblewood Products Ltd were dismissed. Direct Design (North) Ltd was ordered to pay £571 in respect of the claim under the Wages Act and £5,409 in respect of claims under the Employment Protection (Consolidation) Act. The extended reasons for the decision were notified to the parties on 1 February 1995. A notice of appeal was served in March 1995.

The purpose of the preliminary hearing of that appeal is to decide whether the appeal raises an arguable point of law. This Tribunal has no jurisdiction to hear an appeal on any other ground. If there is no arguable point of law in the appeal, there is no point in it proceeding to a full hearing.

The hearing in the Industrial Tribunal proceeded without representation of all parties. The position was that Mrs Bell was represented by a solicitor, Mr Drake. Direct Design (North) Ltd had not served any appearance to the proceedings. They had not filed an IT3 and they were not represented at the hearing. Hamblewood Products Ltd was represented by the Managing Director, Mr Dyson.

In the extended reasons, the Tribunal explained why they made an award in Mrs Bell's favour against Direct Design and why they did not make any award against Hamblewood Products Ltd. It is not necessary, for the purposes of the directions we shall give, to examine the findings of fact. The essential point is this: the claim of Mrs Bell against Hamblewood Products was based on the transfer of an undertaking in July 1994. Her case was that she was dismissed from her position by Direct Design by notice given on 6 June 1994. That dismissal was because of or for a reason connected with the transfer.

The Tribunal's conclusion on the case against Hamblewood Products was that Mr Dyson was a convincing witness when he said that he would have liked Mrs Bell to work with Hamblewood. Hamblewood Products and Direct Design were next door neighbours in one building. Mrs Bell and Mr Dyson of Hamblewood were known to each other. The Tribunal stated that they accepted Mr Dyson's evidence that no mention was ever made of getting rid of staff. He had been prepared to take them all on on the transfer. The Tribunal concluded:

"In all logic there is no reason to connect the dismissal with the later transfer of the business and the Tribunal is not prepared to do so. Accordingly the second respondent was dismissed from the case."

That part of the decision is based also on findings of fact stated in paragraph 2 to the effect that, in all the negotiations that took place between Mr Hemingway of Direct Design and Mr Dyson of Hamblewood between January and August 1994,

"Mr Dyson was at all times willing to take on the applicant as a member of his staff subject, of course, to the question of her health."

Mrs Bell was dissatisfied with the decision dismissing her claim against Hamblewood because, as appears from the extended reasons for the decision, Direct Design was not in as good a position for paying any compensation due to her as Hamblewood Products was. She sought a review. A review hearing took place on 19 April 1995. The Tribunal's review resulted in recalculations of the amounts of money due to Mrs Bell. There was substantial increase in the size of the basic awards from £571 to £1,230. There was an increase in the amount due under the compensatory award.

The Tribunal not only recalculated the amounts, they also reconsidered the position of Hamblewood and the evidence given by Mr Dyson. At the review hearing, as we understand it, Mr Dyson was not present. Mr Drake again represented Mrs Bell. The submission made by Mr Drake, as recorded in the review decision, notified to the parties on 5 May 1995, was that there were certain inconsistencies in the documents. There were matters relating to the evidence, which should be reconsidered, though Mr Drake apparently accepted that, if the findings of fact made by the Tribunal in the first decision were correct, then the decision was correct. Having reconsidered certain matters put to them by Mr Drake, the Tribunal stated that they remained of the view that:

"if there was a reason why Mr Hemingway dismissed the applicant then it was for a reason other than the transfer of the business. When the applicant was dismissed on 6 June the transfer of the business had not been finally agreed and was still 6 weeks away."

The Tribunal on the review also dealt with a complaint by Mr Drake that he had been prevented from cross-examining Mr Dyson. The Tribunal repeated the fact that they found Mr Dyson's evidence was given in a convincing manner. They accepted his evidence his evidence that he was adamant that he wanted to take on Mrs Bell and that her dismissal by Direct Design was against his best interest and not connected with the transfer.

The position today is that, as it is a preliminary hearing, the Respondents are not present or represented. As far as Mrs Bell is concerned, we received a letter from the firm in which Mr Drake is a partner. That letter is dated 20 October 1995. It is on the notepaper of Read Hind Stewart. The letter says:

"Preliminary Hearing: 31st October 1995

As you know we act for the above named Applicant/Appellant. We write as a matter of courtesy to advise the Tribunal that purely and only for reason of cost saving, we will not be attending the preliminary hearing but our client will be in attendance to observe and to make and give such representations as she thinks appropriate.

We are instructed that we will be called upon to provide representation in the event of the matter proceeding beyond the 31st October 1995."

When the case was called on this morning, a friend of Mrs Bell, Mr Holt, who is not legally qualified, said that he would be making submissions on her behalf. During the course of submissions, which have lasted an hour-and-a-half, he referred us to a number of documents, including the Applicant's document's bundle before the Industrial Tribunal. That contains mainly correspondence and a draft contract of employment, which had been sent to Mrs Bell by Mr Hemingway. He referred us to a statement made by Mrs Bell, which was to form the basis of Mr Drake's cross-examination of Mr Dyson, as well as the basis of Mrs Bell's evidence. He has also referred us to a number of other documents relating to the intention of the Registrar of Companies to strike the name of Direct Design (North) off the Register of Companies in October 1994 and the temporary suspension of that Order in relation to allegations made by Mrs Bell that she would be prejudiced as a creditor of the Company by the striking off.

As Mr Holt has developed this part of the case, the position seems to be , as confirmed by a letter sent by the sales director of Hamblewood, that the cheques for the transfer of fixtures and fittings of Direct Design were paid direct to Mr Neil Hemingway and not to Direct Design. It appears to Mrs Bell's case that there was a conspiracy between Mr Dyson of Hamblewood and Mr Hemingway of Direct Design in relation to the transfer of the undertaking. The effect of that conspiracy was to defraud the creditors of Direct Design and also to effect her dismissal from the Company without protection of her rights or compensation to her for unfair dismissal and redundancy. Mr Holt has also shown us correspondence between Miss Wade, an official at the Leeds Regional office, the Industrial Tribunal and Mrs Bell.

The conclusions we have reached at present are these. Mr Holt has not been able to identify in the decision an error of law. It seems from the many points which he made that the essential complaint is that Mr Dyson did not give truthful evidence to the Tribunal. The Tribunal made findings of fact based on his evidence, which they accepted, which are not correct findings of fact. We have explained to Mr Holt a number of times that whether the Tribunal were right in accepting one person's evidence rather than another's is not a question of law. The Tribunal hear the evidence. They see the witnesses give evidence. They decide whether that person is truthful or not. They may make a mistake and believe that somebody is telling the truth when they are, in fact, not telling the truth. That is not a question of law which can be dealt with on an appeal. This Tribunal can only deal with errors of law. They do not involve giving evidence, seeing witnesses and making our own decisions about truthfulness. We can only consider the decision to see whether the Tribunal correctly interpreted the law and correctly applied it to the facts which they have found and which we cannot question.

We are not able to see that much assistance is given to Mrs Bell's case by the details which Mr Holt provides about the factual background to this matter. We have to go by the facts found by the Tribunal, not the facts that Mrs Bell wished they had found.

If those were the only points that Mr Holt had made we would direct that this appeal be dismissed now and not proceed any further. Late in his submissions, however, he started to provide details not mentioned in the notice of appeal, which have caused a certain amount of disquiet as to the way in which these proceedings were dealt with by Mrs Bell's representative at the Tribunal. The only criticism of the conduct of the Industrial Tribunal hearing in the notice of appeal is in paragraph 5.4 of the notice of appeal, served on 14 December 1993 and is signed in the name of Read Hind Stewart, the solicitors in which Mr Drake is a partner. That ground alleges an error of law in:

"Whether the Industrial Tribunal erred in failing to permit Applicant's representative to cross-examine Mr Dyson on the subject of the transfer of the first Respondent's undertaking to the second Respondent and in particular alleged causal connection between the said transfer and the Applicant's prior dismissal."

That point was raised on the review. The Tribunal's response to it was that, whereas Mr Dyson and his Company were not represented, Mrs Bell had a competent solicitor and was supported by a friend. That appears to be the Tribunal's answer to the complaint that there may have been interventions from the Tribunal in order to protect a litigant in person in the cross-examination of him by a qualified lawyer. That point alone would not cause the concern of Mrs Bell. The point that concerns us is this: as we understand it, Mrs Bell is saying that at lunchtime on the day of the hearing of the Tribunal there was a conversation between Mr Drake and Mr Dyson which would suggest, first, that Mr Dyson was not telling the Tribunal the whole truth and, secondly, that there was some kind of arrangement between Mr Dyson and Mr Hemingway for the payment of money, to go to Mrs Bell. We are not able today to decide what significance to attach to this conversation, if such a conversation took place. We express surprise that, if this conversation took place, there is no mention of it in the Industrial Tribunal's decision. We can only assume that it was not mentioned to them. There is no mention of it in the Tribunal's review decision and, even more surprising, there is no mention of it in the letter sent by Mr Drake to the Tribunal on 14 February 1995 seeking a review.

Mr Holt, however, has made it clear that he and Mrs Bell would swear that such a conversation took place. We propose to deal with this aspect of the matter by the following order: this preliminary hearing will be adjourned. We are not deciding at this stage that there is a point which can be argued as a matter of law on an appeal. We will adjourn this preliminary hearing on the basis that, within the next two weeks, affidavits are sworn by Mr Drake, Mr Holt and Mrs Bell concerning the conversation which took place between Mr Drake and Mr Dyson at lunchtime at the hearing before the Industrial Tribunal in Leeds on 16 January 1995. The matter will then be re-fixed for hearing by the same Tribunal as has heard this preliminary hearing this morning. We will then consider whether, in the light of those affidavits, this matter should proceed further. The affidavits should give details of exactly what was said, by whom, to whom, where and when. If they do not give these particulars, they are unlikely to carry any weight. If these affidavits do give particulars and we decide that those particulars should be further investigated at a full hearing of this Tribunal, we will give directions that those affidavits be served on the Respondent, Hamblewood Products Ltd and Mr Dyson, and that Mr Dyson be given an opportunity to respond to those affidavits with an affidavit of his own.