United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS S DAWSON (Representative)


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law in an appeal raised against the Industrial Tribunal's refusal to conduct a review of a decision which was sent to the parties on 4 April 1996.

The reasons why the application for a review was refused are these - firstly, that the application was out of time; secondly, that even if it were not, it would have no substance, as the correct weekly wage for calculating the redundancy payment had been used, and thirdly, that the recoupment regulations did not apply to a redundancy payment.

The substantive decision related to the amount of the redundancy payment to which the Applicant was entitled when she ceased to be employed by the Respondent. She had worked in the Respondent's shop in Fowey and lived in the flat. It has been pointed out to us, and we accept, that the tenancy of the flat and her employment in the shop were not connected. Fowey is subject to seasonal trade and accordingly the shop was closed for the winter season. The question arose as to whether, despite the fact that she had no contract of employment during the close season, she could nonetheless be regarded, by virtue of an arrangement arrived at between the parties, to be on the books of the employer during the close season.

The Industrial Tribunal had considered that question and resolved it in the employee's favour. They looked with care at what actually happened during the close season and identified a number of activities which the Applicant either herself, or through a family representative on her behalf, carried out for the business. Those matters are identified in paragraphs 7 to 12 inclusive, of the Industrial Tribunal's substantial decision.

The grounds on which it is said that the Industrial Tribunal was wrong not to accept the application for a review may be summarised in this way - firstly, it is said that the Tribunal were wrong in concluding that the application for a review was out of time. We have not heard full argument on that point but are inclined to the view that the submission made to us this morning, that the application was within time is correct. We refer to Rule 11(4) of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 Schedule 1 which govern the rules of procedure before an Industrial Tribunal and incline to the view that the fourteen-day period starts from the day after the decision was sent to the parties, that would be 5 April. The application for a review was received on 19 April and therefore was received within fourteen days of the date. We are prepared to proceed on the assumption, as I say, that the Tribunal were wrong to have rejected their application for a review on that ground.

The second ground on which we are asked to say that there is an arguable point of law in relation to the appeal is that the Industrial Tribunal should have been prepared to accept new evidence. Rule 11 to which I have referred provides:

"... a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that--

........

(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing"

The evidence which the employer would have wished to adduce related to the finding by the Industrial Tribunal that periodically the employee would go into the shop to turn on the tills and the weighing machines, which, being electronic devices, needed power to be applied to them from time to time.

What the employer wishes to say is that, at any rate in relation to the close season immediately before, or almost immediately before the termination of her employment, there are some grounds for thinking that that duty was not carried out.

It seems to us, with respect, that this evidence could reasonably have been produced at the Industrial Tribunal itself. The employee in her IT1 had specifically referred to this activity in her presentation and the employers in their response to it had indicated that they took issue with what she was saying she did. They were also saying that, in any event, what she did was as keyholder, rather than as an employee still on the company's books.

For that reason it seems to us they were aware of the nature of the case against them and had an opportunity to lead whatever evidence they wanted on that point. It is not suggested to us that this evidence was somehow unknown to the employers at the time of the substantive hearing. On that ground we think that there is no arguable prospect of success in an appeal.

The next point that is made and was made succinctly by Ms Dawson on behalf of her husband, the employer, is that in the interests of justice a review is required. The first point that is made in the Skeleton Argument is that the findings of the Tribunal created a far-reaching precedent for small tourist-related businesses.

We have considered that application with some care. It seems to us that the nature of the decision of the Industrial Tribunal was to the effect that, by reason of the facts which they set out in the paragraphs to which I have referred, they were satisfied that there was an arrangement between the parties which could legitimately lead to the conclusion which they arrived at, that she [the employee] was on the books during the close season, despite the fact that she was not under a contract of employment with them.

What Ms Dawson points out is that if that conclusion is correct, then the Applicant was able to go to London during the winter season, obtain employment there, but nonetheless be regarded as still in the employment of the Respondent business. She said that that seemed to her not to be a sensible conclusion. One was either to be regarded as on the books of the Respondents and thus not open to obtain alternative employment, or alternatively, to not be regarded as being on the books and free to take up alternative employment.

We can see the force of that point but the Court of Appeal has decided in a case which is binding upon us, that the fact that an employee takes up another job in the meantime in the close season, does not prevent the employment with the other employer from continuing. That case is Thompson v British Channel Ship Repairers and Engineers Ltd [1970] Vol.5 ITR page 85. It is also of significance that in Rhodes v Pontins Ltd [1976] ITR page 88 the fact that Mr Rhodes was employed by the Derbyshire County Cricket Club in the summer, did not, of itself, prevent him from making a complaint against Pontins, albeit that that complaint was rejected by the Industrial Tribunal on other grounds.

Accordingly, it seems to us, that it is not manifestly unjust that an employee should both be regarded as remaining on the books for the purposes of continuity provisions, and be able to obtain alternative employment at the same time. For those reasons we have come to the conclusion that the interests of justice do not require that this matter should go to a full appeal, or that there should have been a review of the first decision. We regard the Tribunal's decision as being confined to the facts of the particular case. There may well be many people who work on a seasonal basis whose employment could not be said by arrangement to have been regarded as continuing from one season to the next. It seems to us that whether an employee is still on the books or not, does depend entirely on its own individual facts. On the facts of this case, we do not think that the Industrial Tribunal could be said to have erred in law. Accordingly despite the submissions which we have received, we feel compelled to dismiss this appeal.