United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 843_95_1312

Appeal No. EAT/843/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 December 1995

HIS HONOUR JUDGE H J BYRT QC

MISS C HOLROYD

MR D A C LAMBERT

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MR K T BARTHORPE T/A BARTHORPE & CO          APPELLANT

MR R W DEAN & OTHERS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


APPEARANCES

For the Appellant MR K T BARTHORPE

in person


 


JUDGE BYRT QC: This matter comes before us as a preliminary hearing, relating to an appeal against a decision which was promulgated on 5 July 1995 by the Bristol Industrial Tribunal when unanimously it held that each of the three applicants, now the Respondents, were dismissed by reason of redundancy.

The Appellant, Mr Barthorpe, their employer, did not attend that hearing. We do not know the reason why he did not do so but, doubtless, for a good reason. Mr Barthorpe now appeals against the findings of the Industrial Tribunal, both on the issue of the redundancy and on their findings relating to the award of damages to which they found the Applicants entitled by reason of the fact that they had no notice terminating their contract.

The issue in the case which the Tribunal had to decide was quite straight forward. So far as the Applicants' case was concerned, it was that, in October 1994, Mr Barthorpe had told one of the Applicants that he was seeking a job and, if he was successful in finding it, his building company in which he employed them would cease trading. Their case was that they heard no more until 17 March when they were told that Mr Barthorpe had been successful in getting a job, that he would start that new job on 3 April and, in consequence, his company would cease trading on 31 March.

Mr Barthorpe's case, which is reflected in the formal document he submitted to the Industrial Tribunal at page 31 in the bundle, is that, in the previous October, Mr Dean, one of the applicants, had told him he wanted to move into quieter, less physical employment and, in consequence, would be leaving him when he had found it. As a result of that information, Mr Barthorpe says he decided that, as he was losing a crucial employee in a business in which he employed only three in all, he could not continue and therefore for that reason would have to cease trading.

The issue for the Tribunal to decide was quite simply who was telling the truth. Unhappily, the only people to attend were the three Applicants and the Tribunal heard their evidence. They only had the representations of Mr Barthorpe on paper. At the end of the day, in that difficult situation, the Industrial Tribunal came to the conclusion, set out in paragraph 6 of their reasons, that:

"We have seen all three applicants given their reasons. It appeared to us to be consistent. They appeared to us to be honest and straightforward men."

As a result, the Industrial Tribunal decided in favour of the Applicants.

There is no point of law involved in that at all. It is all a straightforward issue of fact and we have to ask ourselves as to whether the finding of that Tribunal was one to which no reasonable Tribunal could have come. One only has to state the facts and appreciate the difficulties the Industrial Tribunal had to cope with, in the absence of Mr Barthorpe, to see that it was a perfectly reasonable decision for the Industrial Tribunal to come to in the circumstances.

Mr Barthorpe has attended before us today and, in effect, has argued that in some way he should be allowed to have a second bite at the cherry. Unhappily for him, it is a fundamental principle of all Courts and Tribunals that litigation, once litigated, has to be decided once and for all. One is not entitled to have a second bite of the cherry unless, of course, the Tribunal is shown to have decided the case on the strength of an error of law.

In all those circumstances, we do not see an arguable case for Mr Barthorpe to bring forward to a full hearing on this appeal and, accordingly, we have no alternative but to dismiss the appeal at this stage.