United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1346_95_1207

Appeal No. EAT/1346/95

EAT/1347/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12 July 1996

HIS HONOUR JUDGE PETER CLARK

MISS D M PALMER

MR S M SPRINGER MBE

---

MR J P SUTCLIFFE & OTHERS          APPELLANTS

BIG C's MARINE LTD & OTHERS           RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant J P SUTCLIFFE MR B THOMAS

(of Counsel)

Messrs Kearns & Co

Solicitors

Paramount House

162-170 Wardour Street

London W1V 3AT

For the Appellants R WHITLOCK & D LONSDALE MR A FARRELL

Southampton & District Unemployed Centre

11 Porchester Road

Woolston

Southampton

Hants SO19 2JB

For the Respondents MRS M SIDDALL

(Solicitor)

Messrs Paris Smith Randall

Solicitors

9 College Place

Southampton

Hampshire SO15 2YR


 


JUDGE CLARK: Mr Clive Curtis stated in the power-boat business in 1969. He has operated his business through a number of companies, the history of which we shall return to later in this judgment. Along the way he was joined in his "Cougar" enterprise by the three Appellants, Messrs Whitlock, Lonsdale and Sutcliffe, each of whom held senior positions. On 3 February 1995 their employment came to an end. They claimed that they had been unfairly dismissed and with the assistance of the Southampton and District Unemployed Centre they launched Industrial Tribunal proceedings in March 1995.

Their originating applications named a number of companies as employer, including one, Cougar Marine Ltd (Marine), which had gone into liquidation. The other companies named contended that each Appellant was employed by Marine. Accordingly, it was arranged that a preliminary hearing would be held to determine who was the proper employer.

That issue came before a Chairman, Mr M A Rich, sitting alone at the Southampton Industrial Tribunal on 17 August and 19 October 1995. In a reserved decision promulgated on 1 November 1995 he found that each Appellant was solely employed at the effective date of termination by Marine. Against that decision each Appellant now appeals within time.

Following the first day of hearing Mr Farrell, then representing all three Appellants, sought further discovery from the Respondents. The request was refused. He applied by letter to the Chairman for an order. That application was refused by letter dated 17 October 1995.

Mr Thomas, Counsel now instructed by Mr Sutcliffe, wishes to challenge that order on appeal. However, he accepts that the notice of appeal was not lodged within 42 days of the interlocutory order contained in the Tribunal's letter of 17 October. That is the relevant date in our judgment. He therefore applied for an extension of time. We refused that application. The discovery application was not renewed orally before the Chairman on 19 October. No excuse for the appeal being out of time is advanced. It is suggested that lassitude should be given because Mr Sutcliffe was then represented by Mr Farrell. We cannot accept that proposition. Mr Farrell is an experienced advocate before industrial tribunals. He is presumed to know the law and procedure in this field of law. See Martin v British Railways Board [1989] ICR 24.

Mr Thomas then sought to put in further material as fresh evidence. We could see no grounds for acceding to that application. Accordingly, we moved to the merits of the appeal against the Chairman's decision dated 1 November 1995.

Based on the evidence before him the Chairman made a number of findings of fact.

Corporate history

Mr Curtis' first trading vehicle in 1969 was Cougar Marine Ltd. In 1980 that company was acquired by the Toleman Group (Toleman) which acquired the right to use the Cougar name. Toleman also formed a company called Cougar Holdings Ltd (Holdings).

Mr Curtis became involved as Director and shareholder in a company called Big C's Marine Ltd (Big C).

In 1992 Big C acquired the shares in Holdings. Marine remained within the Toleman Group. Toleman changed the name of Marine to Toleman Marine Ltd.

In October 1992 Big C formed a new company, Cougar Marine Ltd (Marine).

On 31 December 1992, the Chairman found, the current assets, including work in progress of Holdings were sold to the new Cougar Marine Ltd, and its fixed assets were sold to Big C.

Until 31 December 1992, he found, each Appellant was employed by Holdings. He concluded that as a result of the transactions on that date a relevant transfer took place, whereby the undertaking carried on by Holdings was transferred to Marine. He found that the contracts of employment of the Appellant's were also transferred to Marine on that day.

Mr Thomas, supported by Mr Farrell, who appears for Mr Whitlock and Mr Lonsdale today, submits that the finding was perverse. The Chairman ought to have found that the Appellants were employed by all the companies in the Cougar Group for which they worked, that is Holdings, Big C and Marine, if not also European Coach Conversions Ltd.

We are quite unable to accept that submission. The Chairman found as a fact that all three Appellants were informed of the transfer by Mr Lucas, cf Photostatic Copiers (Southern) Ltd v Okuka [1995] IRLR 11. Messrs Sutcliffe and Lonsdale had been issued with new statements and terms of conditions with Marine in November 1993. It was unclear in the case of Mr Whitlock whether he had been sent new terms and conditions at that time, but we note in his form IT1 he says:

"On Friday 3rd February 1995 I was made redundant along with all other employees of Cougar Marine Ltd."

Each of the Appellants claimed and received a redundancy payment from the National Insurance Fund as former employees of Marine.

Mr Thomas nevertheless submits that we should lift the corporate veil, as was done in Creasey v Breachwood Motors Ltd and others [1993] BCLC 480. We have considered that case. It is not concerned with the transfer of undertakings. We do not consider it to be on point.

Further, the argument that the manoeuvres between companies was a sham was considered by the Chairman and rejected for what we regard as sound reasons.

In conclusion, what we think has happened in this case is that the Appellants, and in particular Mr Sutcliffe, are dissatisfied with the way their cases were progressed below. They now want a second bite of the cherry. That is not permissible. There is no error of law here. The appeals must be dismissed.