United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1305_95_2504

Appeal No. EAT/1305/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25th April 1996

HIS HONOUR JUDGE PETER CLARK

MR L D COWAN

MR P DAWSON OBE

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MR D BOWMAN          APPELLANT

SABRE AIRWAYS LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised


 


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APPEARANCES

For the Appellant MR B NAPIER

(of Counsel)

Messrs Rowe & Cohen

Solicitors

2nd Floor

5 Vigo Street

London W1X 1AH


 


JUDGE CLARK: The preliminary issue decided by the London (North) Industrial Tribunal in this case was what was the effective date of termination of the appellant employee's contract of employment. Was it 31st October 1994 at which time he was employed by Ambassador Airways, in which case his originating application was in time, or was it a date late in November 1994, when Ambassador when into liquidation, their business being taken over by Sabre Airways Ltd, in which event the claim was in time?

The tribunal found that the contract terminated on the earlier date. Against that finding and a consequential decision that the claim be dismissed the employee now appeals.

The question for the Industrial Tribunal was what was the date on which the termination took effect. See Section 55(4)(b) of the Employment Protection (Consolidation) Act 1978. Even if the employment ceases other than on proper notice it is not necessary for the employee to accept the employer's repudiatory breach of contract. See Robert Cort & Son Ltd v Charman [1981] ICR 816. Thus it is essentially a question of fact for the tribunal to decide, when did the employment come to an end?

The tribunal reviewed the evidence before it at paragraphs 14-21 of its extended reasons dated 23rd October 1995. It concluded, on that evidence, that the effective date of termination was 31st October 1994.

Mr Napier, on behalf of the appellant, accepts that there was some evidence to support its conclusion, but argues that such a conclusion was perverse in one or more of the senses helpfully collected by Mummery J in giving the judgment of the Employment Appeal Tribunal in Stewart v Cleveland Guest Engineering Ltd [1994] IRLR 440.

This is a preliminary hearing held to determine whether or not there is an arguable point of law which ought to go to a full appeal hearing.

We have carefully considered the tribunal's findings contained in paragraphs 14-21 of the reasons and the arguments deployed by Mr Napier. We would make two observations on the evidence before the Industrial Tribunal.

First, as the tribunal record in paragraph 17 of their reasons in a document submitted to the liquidator on 26th January 1995 and signed by the applicant there is a claim for wages from 1st October to 31st October 1994. There is no claim for wages for the month of November.

Secondly, it appears that considerable reliance was placed by Mr Bowman on his flight log book to show that he was indeed employed in November. That log book was not produced in evidence to the Industrial Tribunal, and no application was made on his behalf for an adjournment. It is not the function of this tribunal to give parties an opportunity to put their evidence in order in a way that they perhaps ought to have done before the Industrial Tribunal.

We are quite satisfied that based on their primary findings of fact, the tribunal was entitled to reach the conclusion which it did. The perversity ground of appeal which Mr Napier seeks to advance, is, in our judgment, without foundation. The appeal must therefore be dismissed.