United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 870_95_0207

Appeal No. EAT/870/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 2 July 1996

Before

HIS HONOUR JUDGE J ALTMAN

MS S R CORBY

MR J A SCOULLER

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DIAMOND PORT LTD          APPELLANTS

T/A ROYS WEST END

MR P B SMALLDON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants NO APPEARANCE BY OR

REPRESENTATION ON

BEHALF OF THE APPELLANTS/ RESPONDENT

For the Respondent


 


JUDGE J ALTMAN: By Notice of Appeal dated 14 August 1995, the Appellants' appeal against the decision of the Industrial Tribunal of 11 July 1995, on the ground that the Tribunal erred in law in holding that there was continuity of employment for the Applicant, before the Tribunal, in her employment with the 2nd and 3rd Respondents, it being the Appellants' contention that continuity was broken so as to deprive the Applicant of a claim against the 3rd Respondents, Diamond Port Ltd t/a Roy's West End, because her length of service with that particular employer was for less than two years.

Prior to the listing of this appeal on 14 March, Mr Martin, on behalf of the 3rd Respondent, wrote to inform the Employment Appeal Tribunal that voluntary winding-up was proceeding and seeking advice about the matter. He was given advice that the case would continue in the light of the process of their voluntary winding-up and he could take part if he wished.

On 21 March the Law Centre, on behalf of the Applicant and Respondent to this appeal, wrote to the Tribunal asserting that there was a creditor's winding-up and there was no money in the liquidation and requesting the Employment Appeal Tribunal to direct that the appeal be discontinued or fall, because there was no useful purpose to be served by carrying on with it.

At that point the Appellants did not discontinue and there is no procedure for making a claim other than by hearing it and dismissing it, so the matter remained in the list. However, by letter dated 1 July 1996 sent by courier, which did not arrive for the time of this hearing, but was followed up by a fax of the same document which we have just received, the Central London Law Centre helpfully wrote to tell the Employment Appeal Tribunal that the 3rd Respondents to the Industrial Tribunal hearing have in fact now been compulsorily wound up on petition from H M Customs and Excise. The Law Centre pointed out that this matter is governed by Section 130(2) of The Insolvency Act 1986. That is correct in fact, and that section provides that:

"When a winding-up order has been made no action or proceedings shall be proceeded with or commenced against a company or its property, except by leave of the court and subject to such terms as the court may impose."

It falls to us therefore to declare that these proceedings must be deemed to be stayed in consequence of the order of the court, assuming that the letter is correct, which we have no reason to doubt. We would only point out however, that this appeal has not operated as a stay of the decision of the Industrial Tribunal and such benefits as the Applicant can now obtain by recourse to the Secretary of State, can no doubt be pursued within the context of the winding-up.

The formal order therefore, is that proceedings are stayed.