United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1007_95_0107

Appeal No. EAT/1007/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1st July 1996

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR P R JACQUES CBE

MR A D SCOTT

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MISS B ROBINSON & OTHERS          APPELLANTS

HUDSON BAY CLIPPER CO LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised


 


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APPEARANCES

NO APPEARANCE BY OR ON BEHALF OF THE APPELLANTS


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal brought by Miss B Robinson and five other appellants. Their appeal is in proceedings brought against the respondents, Hudson Bay Clipper Co Ltd, claiming unfair dismissal, unlawful deductions from wages and, in the case of Miss Belinda Robinson, an additional claim for failure to provide written reasons for dismissal.

The decision of the Industrial Tribunal was reached after a hearing at Hull on 14th October 1994 and 28th June 1995. The extended reasons for the decision were sent to parties on 7th August 1995, and an appeal against that decision was served on 18th September 1995.

The tribunal heard representations on behalf of the employees by a Mr Humphrey Forrest of the Humberside Law Centre. Mr Humphrey Forrest also signed the Notice of Appeal.

The appeal is against parts of the decision set out in the extended reasons. First, as regards Miss Robinson, the tribunal unanimously found that she was unfairly dismissed and that she was entitled to awards as set out in the reasons. There is an appeal against that, in particular the ruling, in paragraph 19 of the decision, on the amount of compensation which Miss Robinson should receive for the unfair dismissal.

The majority of the tribunal decided that the appellants, the other five, were not unfairly dismissed in breach of Section 60A of the Employment Protection (Consolidation) Act 1978. Their applications failed.

The difference between Miss Robinson and the other appellants, was that she had more than two years continuous service, and did not need to rely on Section 60A of the 1978 Act in order to succeed. The others brought their case under that section, but they failed for the reasons explained in the Industrial Tribunal's decision, in particular, paragraphs 17 and 18 of the extended reasons.

The Notice of Appeal sets out the grounds on which the other five seek to appeal against the majority ruling of the tribunal in paragraph 2 of the decision and paragraph 17 of the extended reasons. The other parts of the decision, which were in favour of the appellants under the Wages Act 1986, are not obviously the subject of appeal by the appellants. There has been no cross-appeal by the employers.

It has been necessary to set that background to our decision today as a number of developments have occurred. First, this tribunal was notified by the Assistant Official Receiver, in a letter of 8th March 1996, that the Hudson Bay Clipper Co was now in compulsory liquidation as a result of a Winding-up Order on 21st November 1995, that is, after the service of the Notice of Appeal. The official receiver is the liquidator. The official receiver was notified by Peninsula Business Services, who represented Hudson Bay Clipper Co about the Industrial Tribunal proceedings, but went on to say this:

"... the Official Receiver has no funds in this matter and cannot give any instructions for the employment of a defence. No doubt you will notify me of the decision in due course as any claim awarded will be a claim in the liquidation proceedings."

That was a letter sent to the Industrial Tribunal office and copied to the Appeal Tribunal office.

We have ascertained from the court file that there was a conversation in March 1996 between a representative of the Humberside Law Centre and the Listing Office about the matter. It appears from that note that there had been an earlier conversation in January 1996 in which the listing officer was asked to hold the matter for a number of weeks as the appellants might wish to withdraw their appeal, because the respondents were going out of business. There is no further correspondence about this. It does not appear from the court file that the Humberside Law Centre returned to this tribunal, after they were notified of the date for today's hearing, the notice in which they are asked to indicate whether or not they intend to appear at the preliminary hearing.

This morning nobody attended on behalf of the appellants. We have not received any letter or other indication as to whether they wish to be present to represent the appellants. We therefore asked for a telephone call to be made to the Humberside Law Centre. That has been done by one of the associates. His note of the conversation is as follows:

"I phoned the Law Centre and spoke to Mr Forrest's Secretary who thought he was in Grimsby this morning doing a tribunal case there. She has had a message that he will be back at 2.15. I explained the Court's position - she will get Mr Forrest to ring as soon as he returns (although she did not seem terribly conscious of the import of our predicament)."

This is unfortunate. It is the duty of appellants when they are notified of hearings, and this hearing was notified as long ago as 20th March 1996, to indicate whether they are going to pursue the appeal or to withdraw it, and, if they are going to pursue the appeal, whether they intend to be present or not, and, if they do not intend to be present, whether they wish this tribunal to deal with the case on written submissions. In the circumstances outlined, we have decided that the course we should take is to deal with this case on the papers that are before us. We know, having read the extended reasons and the Notice of Appeal, the grounds on which this appeal is brought.

We have formed the view that there are reasonable grounds for arguing points of law, both in relation to Miss Robinson and the effect that the tribunal's reasoning had on her compensatory award, and, in relation to the other five, on the question whether they were dismissed in breach of Section 60A of the 1978 Act. It is not necessary to say any more about this. Indeed it is not appropriate to do so, because, if this appeal is pursued, it will be for the full tribunal hearing to decide whether these points have been made out.

We would, however, ask that the Humberside Law Centre give serious consideration to the state of this appeal. It is a case against a company which is in liquidation. It may be that the Humberside Law Centre, in its concern for the six appellants, should now consider whether it might not be more in the interests of those appellants to make a claim on their behalf against the Secretary of State under the provisions of the 1978 Act under which a Secretary of State may be liable to make certain payments, which an insolvent employer is unable to make by reason of his insolvency, in connection with arrears of wages, notice payments in lieu, redundancy payments and other payments covered by the relevant provisions of Section 106 and succeeding sections 1978 Act.

If the Humberside Law Centre does decide to proceed with this appeal, then we would direct that they lodge a skeleton argument in support of the appeal at least 14 days before the date fixed for the hearing. We also direct that a copy of this judgment be sent to the Official Receiver of the Insolvency Service, to bring him up to date with the state of these proceedings on the appeal.

Our order is that the matter proceeds to a full hearing in accordance with the terms of this judgment.