United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MARTIN WEST (Representative) Peninsula Business Services Ltd Stamford House 361-365 Chapel Street Manchester M3 5JY


 


JUDGE PETER CLARK: This is an appeal by the Second Respondent company, Aiken Ltd, to Industrial Tribunal proceedings brought by the Applicant, Mr Wilton, against a decision of the London (South) Industrial Tribunal sitting on 25 July 1996, that the Applicant was unfairly constructively dismissed by that Respondent following a relevant transfer of the undertaking in which he was employed from the first Respondent, Henry W. Aiken Ltd, to the second Respondent. We shall preserve the same party identification in this judgment.

The background is as follows. The Applicant was employed by the first Respondent, who were in the business of wholesale supply of fishing equipment, from February 1989 until 22 January 1996. He worked in the Spooling Department. He earned a flat rate of £140 per week gross. There was no bonus system.

The first Respondent found itself in financial difficulties shortly before Christmas 1995. The Applicant did not receive his Christmas week wages, in respect of which the Industrial Tribunal made an unopposed Wages Act award.

On Friday 19 January 1996 Mr Aiken, the Managing Director of the first Respondent, addressed the workforce, informing them that the first Respondent was going into liquidation, but that he was immediately starting up a new company, the second Respondent, and that from Monday 22 January the entire Spooling Department would be taken over by the second Respondent.

However, employment with the second Respondent was to be on different terms and conditions as to pay. The basic rate would be £50 per week, together with payments under a productivity bonus scheme. The Applicant considered the detail of that scheme and concluded that under the new terms he would be £40 per week worse off. Before the Industrial Tribunal the Applicant appeared and gave evidence; neither Respondent appeared. The Tribunal found as a fact that the Applicant would suffer a £40 per week loss based on his evidence, and that this constituted a fundamental breach of his contract of employment following a relevant transfer of the business from the first to the second Respondent. The Applicant left the employment and presented a complaint of unfair dismissal, together with the Wages Act claim to which we have referred.

The first Respondent entered a Notice of Appearance relying upon the transfer to the second Respondent as an answer to the claim and the Industrial Tribunal accepted that there was a relevant transfer.

Following a Chairman's decision to join the second Respondent to the proceedings Mr Aiken wrote a letter on the first Respondent's notepaper dated 18 July 1996 which is now before us. That letter was treated by the Tribunal as the second Respondent's Notice of Appearance.

The Tribunal concluded that following the transfer there was a unilateral variation to the Applicant's terms and conditions of employment, and that breach was fundamental entitling the Applicant to treat himself as constructively dismissed. In the absence of any economic technical or organisational defence being made out by the second Respondent it found the dismissal unfair, and proceeded to assess compensation for that unfair dismissal in the total sum of £3,774.88.

In this appeal Mr West boldly submits that despite the fact that the second Respondent chose not to attend the Tribunal hearing, although it had been properly joined as a party, if a party does not understand the case he has to meet, then he should be given the opportunity to get assistance or should have it explained to him by the Tribunal.

He has been unable to refer us to any authority for that proposition of law. We are not surprised. It is in our view unsustainable.

If a party chooses not to attend a Tribunal hearing, nor seek advice, he can expect little sympathy from this Appeal Tribunal.

There is, in our judgment, no arguable point of law raised by this appeal. It must be dismissed.