United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 977_95_2201

Appeal No. EAT/977/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 January 1996

HIS HONOUR JUDGE J ALTMAN

MR D G DAVIES CBE

MR R H PHIPPS

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SECRETARY OF STATE FOR EMPLOYMENT          APPELLANTS

MR J PAYNE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR R JAY

(Counsel)

The Treasury Solicitor

Queen Anne's Chambers

28 Broadway

London

SW1H 9JS

For the Respondent NO APPEARANCE BY OR ON BEHALF OF THE

RESPONDENT


 


JUDGE ALTMAN: This is an appeal from the decision of the Industrial Tribunal sitting at Bury St Edmunds on 23 May 1994, the decision being promulgated to the parties on 13 June 1995 in the form of extended reasons.

The case concerned an application against the Secretary of State for Employment for failing to exercise his powers correctly under Section 122 of the Employment Protection (Consolidation) Act 1978, to make payments in relation to termination relating to holiday pay and accrued notice, the Secretary of State having made payments under Section 106 of that Act in relation to a redundancy entitlement.

The Company and its employees and the surrounding circumstances have previously been dealt with in a case which eventually reached the Employment Appeal Tribunal under the heading of Secretary of State for Employment v Dines and Holland EAT 384/94, in which the issues of fact, identical to those in this case, were considered by the Employment Appeal Tribunal, really in relation to the essential issue taken by the Secretary of State in this case, as to whether or not the Company satisfied the test of insolvency, as defined in Section 127 of the Act. That issue concerned the Employment Appeal Tribunal in that case, concerned the Industrial Tribunal in this case, and now concerns us as to whether or not there is a ground of appeal.

We do not wish (just in case the words we use may carry some slight difference to the words used by Morison J who gave judgment in that case) to spend any time in putting into our words the issues or the tests or the conclusions that were arrived at in that case, save to transfer from that case to this the words of the judgment of Morison J as they stand "in extenso" as our judgment in this appeal, because the case is in fact one and the same. It is a pity they were not heard together and perhaps it is a pity that this appeal was not allowed as a result of a written consent, it appearing that the Respondents have conceded the point in any event. But little time has been expended on this matter happily, due to the helpful way in which the matter was put before us by Mr Jay on behalf of the Appellants and the fact that the Respondent himself has not taken any point which is invalid in any way.

It is inevitable therefore, that the conclusion is that the relevant Company was not insolvent and that the Appellants therefore are not entitled to any sum under the relevant section, Section 122 of the Act, as a result of the definition of insolvency in Section 127. This appeal is allowed and the decision of the Industrial Tribunal will be amended to provide that the Applicant, Mr Payne, is entitled to no sum from the Secretary of State for Employment and his original application is rejected.