United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1127_95_1602

Appeal No. EAT/1127/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 February 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR D J JENKINS MBE

MRS M E SUNDERLAND JP

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SPORTSMANS TRAVEL LTD          APPELLANTS

MR P BROOKS          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR B M WHITMORE

(Director)


 


MR JUSTICE MUMMERY (PRESIDENT): This appeal is against the decision of the Industrial Tribunal held at Stratford on 5 July 1995. The Tribunal unanimously decided that the Applicant, Mr Brooks, had been unfairly dismissed by Sportsmans Travel Ltd and that a complaint by Mr Brooks under the Wages Act 1986 was well-founded.

In the extended reasons sent to the parties on 8 September 1995, the Tribunal explained the reasons for their findings of unfair dismissal and a well-founded complaint under the Wages Act. They explained their calculations for a total award of £4,898. At that hearing, Mr Brooks was represented, but Sportsmans Travel were neither present nor represented. Sportsmans Travel appealed against that decision.

The case was listed for a Preliminary Hearing in this Tribunal, because it was not apparent from the Notice of Appeal that there were any arguable questions of law on the appeal. The Preliminary Hearing of the appeal took place on 6 December 1995, when a judgment was given dismissing the appeal on the grounds that the Tribunal could find no arguable point of law. That judgment was given in the absence of any person representing the Appellant company. In the absence of a director or representative of the company, the Tribunal studied the decision and the documents relevant to the case, before coming to the decision that there was no point of law.

That would normally be the end of the matter. There was no application for leave to appeal. But, after the order dismissing the appeal had been received by the company, the company's director, Mr Whitmore, wrote on 8 December, saying that there had been no opportunity to put their side of the case. That is what they wished to do. They did not accept the decision of the Tribunal reached in their absence. Having considered the request, I gave a direction that the company's letter should be treated as an application for a review. A direction was given for an oral hearing to take place, so that the company would have a chance to make representations relevant to the appeal.

This Tribunal has jurisdiction under Rule 33 of The Employment Appeal Tribunal Rules to review an order which has been made and to revoke or vary it on various grounds. One of those grounds is that the interests of justice require a review. The interests of justice normally require that a decision should not be made without both sides having an opportunity to present the case. In this instance, Mr Whitmore's complaint was that his company had not had an opportunity to present their side of the case.

Today, Mr Whitmore attended. He has put his side of the dispute. He has given an account of how, after seventeen years of successful trading, his company was faced with a fight to survive. There were financial problems; problems with the bank. There were internal problems which involved the dismissal of a director. He gave an account of his dealings with the Applicant, Mr Brooks, of interviews that he had with him, of offers he had made to him and of how Mr Brooks had been told at a crucial meeting on 11 January 1995 that he would be made redundant. He told us how Mr Brooks rejected an offer of a consultancy. He explained the difficulties in finding time to be in this country to contest the proceedings in the Industrial Tribunal, and to pursue the appeal in December. He explained how he normally lives in Malta and is often on tour. All this makes it difficult for him to attend to matters of this kind, particularly as this is the first time that anything of this kind has had to be dealt with by his company. He says he must have been naive in the way he has dealt with this matter. The result has been that, on Mr Brooks evidence, which he disputes, the Tribunal had made a favourable decision to Mr Brooks.

In our judgment, it is not appropriate to grant a review of the order dismissing the appeal on 6 December. We have been unable to find in Mr Whitmore's representations anything remotely approaching a question of law which could be successfully argued. It is unnecessary to examine the facts and possible legal arguments, which were dealt with fully by Mr Justice Keene, in the judgment he gave in the Tribunal on 6 December. We agree with that judgment. There is no arguable point of law in this appeal. Mr Whitmore trying to give evidence, disputing findings of fact by the Tribunal made on Mr Brooks evidence. The fact is that that evidence, should have been given at the hearing before the Industrial Tribunal held at Stratford. It was no error of law on the part of the Industrial Tribunal, to make findings of fact on the basis of the evidence which they heard. As they heard no evidence from Sportsmans Travel Ltd, it is not surprising that they made findings of fact more in accordance with what Mr Brooks was alleging, than with what Mr Whitmore alleges. For those reasons the appeal was being dismissed. We refuse to grant a review of the order dismissing the appeal.