United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS J MIDDLETON (Solicitor) Messrs Allen & Overy Solicitors One New Change London EC4M 9QQ


 


JUDGE PETER CLARK: This is an appeal by the Respondent transferor and transferee of the undertaking V.G. Broadcast in which the Applicant employee was employed against a decision of a Chairman, Mr D.M. Booth, sitting alone at the London (South) Industrial Tribunal on 18 February 1997, that the Applicant's complaint that she was not properly consulted about the transfer could proceed notwithstanding that it was presented outside the primary three month limitation period.

The Notice of Appeal, now supplemented by a skeleton argument prepared by Miss Middleton, on behalf of the Respondent Appellants for the purposes of this preliminary hearing, seeks to attack the Chairman's decision on a number of grounds, including the contention that a number of findings of fact, material to the exercise of the Chairman's discretion to allow the matter to proceed to a full hearing, were unsupported by any evidence.

Appeals to this Tribunal are on questions of law only. It is accepted that the absence of any evidence to support a particular finding or findings of fact raises a point of law: see British Telecommunications Plc v Sheridan [1990] IRLR 27, paragraph 35, per Lord Donaldson, M.R.

In these circumstances it will almost always be necessary for the Appeal Tribunal to enquire of the Industrial Tribunal as to what, if any, evidence was before the Tribunal to support the findings of fact in issue. Without such material the argument will probably be unsustainable: see per Lord Donaldson MR in Piggott Brothers Ltd & Jackson [1992] ICR 85.

For this reason the Employment Appeal Tribunal Practice Direction issued on 15 April 1996 provides, in paragraph 7, a procedure whereby parties may apply for the Chairman's Notes of Evidence. Orders for such notes are sparingly made. It is not the function of this Tribunal to retry the factual questions which arose below.

Paragraph 7 provides that an Appellant who considers that a point of law raised in the Notice of Appeal cannot be argued without access to copies of Chairman's notes should submit an application for production of those notes with the Notice of Appeal or as soon as possible thereafter, identifying the issue or issues raised in the notice to which the notes are relevant and giving the names of the material witnesses below and the parts of their evidence said to be relevant to those issues.

The Notice of Appeal in this case was lodged on 11 April 1997. No such application was made prior to the hearing today.

For the purpose of the Preliminary Hearing procedure it is necessary to determine whether or not the appeal raises any, and if so, what points of law. Where no arguable point is raised the appeal will be dismissed without putting the Respondent to the trouble and expense of resisting the appeal. Alternatively, the appeal may be permitted to proceed to a full hearing on some or all of the grounds of appeal.

It follows that for us to decide whether or not the "no evidence" points taken by the Appellant are arguable, we must first obtain the Chairman's notes or comments. Miss Middleton on behalf of the Appellants now applies to us for Chairman's notes or his comments in relation to the specific grounds raised in the Notice of Appeal in which it is said that no evidence was present to support the Chairman's findings of fact.

We accede to that application and we think the correct course is to adjourn this Preliminary Hearing and direct that a copy of the Notice of Appeal and this Judgment be sent to the Chairman, inviting his comments, by reference to both his notes of oral evidence and the documentary evidence that was before him, on the contentions raised in sub-paragraphs A - D and F - I inclusive of paragraph 6 of the Notice of Appeal that there was no evidence to support the findings of fact there particularised.

Following receipt of those comments the papers will be returned to me for a further direction.